author: |,CLARENCE E. McMANUS, Judge.

text:
    Raymond J. VERDUN and Iris Cavanagh Verdun, Wife of Raymond J. Verdum v. Dr. Druby C. HEBERT and Travelers Insurance Company.
    No. 03-CA-225.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Kevin T. Phyer, Borrello, Oline & Du-bluclet, Metairie, LA, for defendant-appellant, Liberty Mutual Insurance Company.
    John E. McAuliffe, Jr., Frederick A. Miller & Associates, Metairie, LA, for defendants-appellees, Jeb Arcement and State Farm Fire and Casualty Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   |,CLARENCE E. McMANUS, Judge.

At issue is whether summary judgment was properly granted in this case. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The incident giving rise to this case occurred on March 2, 2000. Plaintiff, Raymond Verdun, contends that while he was riding his bicycle on Ridgewood Drive in Metairie, Louisiana, a Labrador Retriever (named Bubba) owned by his neighbors, Dr. Drury and Kathy Herbert, ran in front of him causing him to flip over the handle bars striking his head, left knee and left shoulder on the pavement. The dog allegedly escaped undetected through the front door of the Herbert’s residence prior to encountering plaintiff.

Plaintiff and his wife filed suit against the Herbert’s and their primary and excess insurers, Travelers Insurance Company and Liberty Mutual Insurance Company, respectively. The petition alleged strict liability under La. Civil Code article 2321. Plaintiff later amended his petition to add Mrs. Herbert’s brother, Jeb Arcement, and his insurer, State Farm, as a defendants. According to plaintiff, Arcement was at the Herbert’s house repairing their fence and acting as an independent contractor when he left their front door open allowing the dog to escape and cause him injury. Thus, he was negligent under La. Civil Code article |s2316.

Subsequently, Arcement and State Farm filed a motion for summary judgment relying on Arcement’s deposition which stated that Arcement was not working at the house the day of the incident. Rather, he went there to pick up a drill then left. He saw Dr. Herbert in the driveway and entered the front door of the house with a key but did not leave the front door open. He did not see the dog at all that day. He had no knowledge or notice that the dog had any propensity to run out of the house nor was he told to make sure the dog did not get out of the house. He relied on the Herbert’s depositions to support that contention. The motion further noted that La. Civil Code art. 2821 imposes liability upon the dog owner not upon third parties.

In response, plaintiff filed an opposition to the summary judgment asserting there was an issue of material fact as to whether Arcement or Dr. Herbert left the front door open, making summary judgment inappropriate. Plaintiff noted that Dr. Herbert’s deposition states that he went into the house to look for Arcement through the side door and noticed the front door was open. However, this statement was apparently contradicted by an earlier interrogatory stating that Dr. Herbert entered the house through the side door noting that the front door was closed. Plaintiff further argued that Arcement’s status as an independent contractor and any associated inquiries regarding his negligence are questions for the jury.

After a hearing, the trial judge granted the motion for summary judgment citing, Murillo v. Hernandez, 00-1065 (La.App. 5 Cir. 10/31/00), 772 So.2d 868. The trial judge’s oral reasons for judgment note the following:

|4The plaintiff who brings this case has the burden of coming forward today and showing me some element of knowledge that this defendant, Jeb Arcement, might have had about the propensity of the dog to injure someone, and the plaintiff has failed to come forward with that evidence.

This appeal followed.

DISCUSSION

Plaintiff argues that there is a factual dispute as to whether Arcement left the front door open and that the trial judge improperly required plaintiff to demonstrate Arcement had prior knowledge of the dog’s propensity to injure someone when the claims against him were for negligence under La. Civil Code art. 2316.

We note that La. Civil Code art. 2321 provides:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The strict liability of the animal owner under La. Civ.Code art. 2321 cannot be imputed to a non-owner. Murillo v. Hernandez, 00-1065 (La.App. 5 Cir.10/31/00), 772 So.2d 868. Although the third party at issue in Murillo was a landlord, we find that reasoning applicable in this case. In that case we stated:

Although a landlord is strictly liable for injuries caused by vices or defects of his building, he is not liable to a third person for injuries caused by his lessee’s animal. The strict liability of the animal owner under C.C. art. |s2321 cannot be imputed to a non-owner. Parr v. Head, 442 So.2d 1234, 1235 (La.App. 5 Cir.[00-1065 La.App. 5 Cir. 6] 1983). The landlord may still be liable for negligence under La. C.C. arts. 2315-2316, however, if there is a violation of duty and that violation is a cause-in-fact of an injury. Id. This has been interpreted within this Circuit to mean that the record must show the landlord had actual knowledge of the dog’s vicious propensity. Compagno v. Monson, 580 So.2d 962, 966 (La.App. 5 Cir.1991).

Our review of the record indicates that the trial judge properly found that Mr. Arcement had no knowledge of the dog’s propensity to run out of the house and potentially injure a passer by. The duty in this case does not arise from Mr. Arcement’s status as an independent contractor or whether he may have left the door open. Had plaintiff established that Mr. Arcement had knowledge of the dog’s propensity, then his actions, if any, may have subjected him to liability for negligence under La. Civil Code art. 2316. Thus, we are unable to say the trial court erred in this case.

CONCLUSION

Based on the foregoing, the trial court’s judgment granting summary judgment in favor of Jeb Arcement and State Farm is affirmed.

AFFIRMED.

      . Mrs. Herbert confirmed that she never told Arcement not to let the dog out. Dr. Herbert stated that the dog had run out of the house once before but Arcement did not know about that incident.

      . Liberty Mutual also filed an opposition to the motion for summary judgment.

      .La. Civil Code art. 2316 provides:
      Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.


source: Caselaw Access Project

author: I ¡>SOL GOTHARD, Judge. JjROTHSCHILD, J., CONCURS.

license: Public Domain

text:
    STATE of Louisiana v. Robert E. TAYLOR (Appealing as “Robert E. Taylor, Jr.”).
    No. 03-KA-127.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Paul D. Conniek, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Kia M. Habisreitinger, Assistant District Attorneys, Parish of Jefferson State of Louisiana, Gretna, LA, For Plaintiff/Ap-pellee.
    S.G. Ritterbush, Jr., Harvey, LA, For Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   I ¡>SOL GOTHARD, Judge.

In this criminal matter, defendant Robert Taylor, appeals his conviction on a charge of possession of a firearm by a convicted felon and subsequent sentence of fifteen years without benefit of parole, probation or suspension of sentence. For reasons that follow, we dismiss the appeal as untimely, and remand the matter to the trial court.

Defendant was stopped for a traffic violation that resulted in the discovery that he was driving a stolen car in which a gun was found. He was charged with being a convicted felon in possession of a firearm and possession of stolen things by bill of information. At the time of trial, the State dismissed count two (possession of stolen things) and amended the bill of information as to count one to change the predicate offense from conviction for illegal use of a weapon to a conviction for possession of cocaine. The matter proceeded to trial on June 11, |32002 and defendant was found guilty as charged of being a felon in possession of a firearm in violation of La. R.S. 14:95. After his conviction, the trial court denied a defense motion to set bail pending sentence. Thereafter, defense counsel stated, “your Honor, I’d like at this time for the Court to state the delays I have for taking writs on my motions in court for mistrial and for bail.” He was given twenty-one days, or until July 2, 2002. However, no writ application was filed in this Court for review of those decisions.

In the interim, on June 17, 2002, defendant filed a motion for new trial and a supplemental motion for new trial, both of which were denied that same day by the trial court. On June 20, 2002, defendant was sentenced to fifteen years without benefit of parole, probation or suspension of sentence. Immediately after being sentenced, defendant made an oral motion for reconsideration of sentence that was denied. Defendant filed a motion for appeal on July 2, 2002, twelve days after the denial of the motion to reconsider sentence.

La.C.Cr.P. art. 914 provides:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
B. The motion for an appeal must be made no later than:
(1) Five days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Five days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

When a defendant fails to move for an appeal within the time allotted by La. C.Cr.P. art. 914, the conviction and sentence become final and the defendant loses the right to obtain an appeal by simply filing a motion for appeal in the trial court. State v. Counterman, 475 So.2d 336, 338 (La.1985). Once the time delays provided in Article 914 have expired, the appropriate procedural vehicle for a ^defendant to seek the exercise of his right to appeal is an application for post-conviction relief under La.C.Cr.P. art. 924 et seq. Id. at 339; State v. Brooks, 01-1316 (La.App. 5 Cir. 4/10/02), 817 So.2d 222, 223.

In deciding this jurisdictional matter, we have considered the Supreme Court’s directive in State ex rel. Egana v. State, 00-2351 (La.09/22/00), 771 So.2d 638 in which a similar case was remanded to us for consideration of the application of the mailbox rule and “to determine whether, if read fairly and in conformance with principles applicable in review of pro se pleadings, it (application for writs) constituted a motion for appeal.” Subsequently, in State v. Armant, 02-907 (La.App. 5 Cir. 1/28/03), 839 So.2d 271, this Court maintained defendant’s appeal even though the motion for appeal was untimely filed, when defense counsel gave oral notice at the sentencing hearing of her intention to file a writ application. However, we find the case before us now is easily distinguishable from both Egana and Armant. In the instant case, as in Armant, the defendant is not a pro se defendant, but is represented by counsel. However, unlike the defendant in Armant, the defendant herein gave notice of his intent to file a writ application on two specific claims, failure to grant a motion for mistrial and failure to set bail, and the motion was made prematurely in' that it was made before sentencing. Of the two claims made in the oral motion only one, the failure to grant a mistrial, is appealable. Further, that issue is neither assigned as error nor argued on appeal so it is not subject to review by this Court. La.C.Cr.P. art. 920. Accordingly, under the circumstances of this case, we find that the appeal is untimely and that the oral motion for a writ application when “read fairly and in conformance with principles applicable” should not be construed as a motion for appeal.

Because defendant did not file his motion for appeal within the five-day time delay allowed by La.C.Cr.P. art. 914, we dismiss defendant’s appeal as untimely. Further, the proper procedural vehicle for defendant to reinstate his.appeal rights is _J¿by post conviction relief pursuant to La. C.Cr.P. articles 924, et seq., and we remand the matter to the trial court to afford defendant that opportunity. See. State v. Brooks, supra. Therefore, we dismiss the appeal and remand the matter to the trial court.

APPEAL DISMISSED, MATTER REMANDED.

ROTHSCHILD, J„ CONCURS.

JjROTHSCHILD, J., CONCURS.

I agree with the majority that the defendant’s appeal is untimely, because the Motion for Appeal was not filed within five days of the ruling on his Motion to Reconsider Sentence, as required by LSA-C.Cr.P. art. 914. I further agree that the defendant' can seek to reinstate his appeal rights through an application for post-conviction relief. However, in the interest of judicial economy, I would prefer to address the merits of the appeal at this time rather than delay the matter until the defendant files an application for post-conviction relief. See State v. Armant, 02-907 (La.App. 5 Cir. 1/28/03), 839 So.2d 271; and State ex rel. Egana v. State, 00-2351 (La.9/22/00), 771 So.2d 638.


author: | JAMES L. CANNELLA, Judge.

text:
    Clifford D. FRAZIER, v. DELTIDE FISHING & RENTAL TOOL, INC.
    No. 03-CA-53.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Michael W. Whitehead, Mandeville, LA, for Appellant.
    Sammie M. Henry, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and WALTER J. ROTHSCHILD,
   | JAMES L. CANNELLA, Judge.

The Plaintiff, Clifford D. Frazier, appeals from a workers’ compensation judgment dismissing his claims against the Defendant, Decide Fishing & Rental Tool, Inc. We affirm.

The Plaintiff worked for the Defendant as a tool operator and store manager for 14 years. On June 6, 1997, he was employed as a store manager earning $3,500 per month and an extra $325 for each day that he was in the field. On that date, he injured his back while loading oil field tools into a basket. The Plaintiff was seen by Dr. James Fournet who diagnosed him with low back strain and spondylolisthesis at L5-S1. He was told that he could return to light duty work. The Plaintiff continued to work at light duty, earning the same salary.

In August of 1997, the Plaintiff moved to Alabama where he continued to work for the Defendant as a part-time salesman. He was provided a company car, gasoline credit card, and earned $500 per month. This was similar to an arrangement with three other employees of the Defendant. The work arrangement continued until March 1, 2000. According to the Defendant, the Plaintiff was terminated due to “economic necessity.”

In August of 1997, while living in Alabama, the Plaintiff began treatment with Dr. John Vanlandingham, an orthopedic surgeon, who referred him to Dr. | ¡¡Peter Szymoniak, an orthopedic surgeon located in Milton, Florida. Dr. Szymoniak saw him on one occasion in either September or October of 1997.

In May of 1998, the Plaintiff was seen on one occasion by Dr. William Crotwell, an independent medical examiner (IME) located in Alabama. Dr. CrotwelTs report states that the Plaintiff complained of low back pain radiating into the left hip. Dr. Crotwell noted, the Plaintiffs history of a work-related accident resulting in a healed lumbosacral strain. He also noted that the Plaintiff has chronic spondylolisthesis with some degenerative arthritis, which are unrelated to the accident. At the time of Dr. Crotwell’s examination, the Plaintiff was “comfortable without having to do any excessive bending or stretching.” The doctor also concluded that Plaintiffs pain is related to the spondylolistheses and arthritic changes and not to the work-related injury. Dr. Crotwell noted that the Plaintiff has continued to work since his accident. After reviewing the job description for the work which the Plaintiff was performing when he was injured, he felt that the Plaintiff could return to work without any problems.

On April 27, 1999, Dr. Vanlandingham issued a report concluding that the Plaintiff was totally disabled due to a combination of chronic degenerative disc disease along with chronic back instability. The report stated that the Plaintiffs spondylo-listhesis existed from birth and that the degenerative disc disease occurred over time. The doctor concluded that the back strain syndrome and degenerative disc disease were aggravated by his work activities.

Dr. Vanlandingham’s report coincided with a claim for workers’ compensation benefits filed in Alabama in March of 1999. That case was ultimately dismissed for lack of jurisdiction. The dismissal was affirmed by the Alabama appeal court in December of 2000. On June 19, 2001, the Plaintiff | ¿filed a Disputed Claim for Compensation in Louisiana. The case was tried on August 14, 2002. On October 8, 2002, the workers’ compensation judge rendered a judgment in favor of the Defendant. He found that the Plaintiff is capable of light duty work, that he was not paid wages in lieu of compensation, and that the his workers’ compensation claim was prescribed on its face when it was filed on June 19, 2001.

On appeal, the Plaintiff first contends that the claim was not prescribed, that the trial judge erred in finding that the Plaintiff was not paid wages in lieu of compensation which extended the prescriptive period, and in failing to recognize that the timely filed claim in -Alabama interrupted or suspended prescription. Second, the Plaintiff asserts that the trial judge erred in finding that the Plaintiff is capable of light-duty work, contrary to the opinion of his treating physicians. Third, the Plaintiff contends that the trial judge erred in failing to award penalties and attorney’s fees because the indemnity benefits were never paid despite repeated demands. PRESCRIPTION

The Plaintiff filed a reply brief in which he argued that the peremptory exception of prescription is not properly before the Court because the Defendants failed to file a pleading asserting the exception in conformity with La.C.C.P. art. 927 and C.C.P. art. 924. However, the Defendant filed the exception in this Court in response to the Plaintiffs argument. Thus, it is properly before us.

Furthermore, since the record reflects that the Plaintiff was aware of the exception in the trial court and was prepared to and .did argue it before the trial court, we need not remand for a hearing on the exception.

La. R.S. 23:1209(A) in part, provides that claims for workers’ compensation are forever barred unless a claim is filed within one year after the accident, or the Isparties have agreed upon the payments to be made. Voluntary payments, or “unearned wages,” paid by the employer to the employee can be deducted from compensation payments. La.R.S. 23:1206. These payments are considered “wages in lieu of compensation.” Jerich v. New Orleans Saints, 00-1299, p. 4 (La.App. 5th Cir.12/27/00); 776 So.2d. 1283. Prescription is interrupted when wages in liéu of compensation have been paid. If wages are paid in lieu of compensation, a claim for compensation benefits must be filed within one year of such payment. Blanchard v. Tulane Medical Center, 97-1111, p. 3 (La.App. 5th Cir.3/11/98), 708 So.2d 1232, 1233; Siemssen v. Manpower Temporary Services, 95-80, p. 6 (La.App. 5th Cir.5/30/95), 656 So.2d 1115, 1117.

The party pleading prescription generally has the burden of proving it. However, when a suit has prescribed on its face, the claimant has the burden of proving that prescription was interrupted in some manner. Siemssen, 95-80 at p. 6, 656 So.2d at 1117. The test to determine if wages were paid in lieu of compensation is whether the wages are actually earned by the employee. Siemssen, 95-80 at p. 6, 656 So.2d at 1117; Franz v. New Orleans Breakers, Ltd. Partnership, 515 So.2d 1120, 1123 (La.App. 5th Cir.1987).

The Plaintiff had worked in the oilfield since 1951. He was employed by the Defendant for 14 years before his accident. According to the Plaintiff, as store manager, he was responsible for managing the store operations to provide certain oilfield equipment to customers, “running” tools, and making sales calls. He testified that a normal part of the job included going into the field to physically assist another worker in screwing together the pieces of equipment used to “fish” a “hole” for an oil or gas field customer. “Fishing” in oilfield terms relates to a string of drilling pipe set in the ground in the process of drilling an oil or gas well. He claimed that this procedure could last anywhere from 10 to 24 hours and it | ^involved lifting and hooking up heavy pieces of equipment to a crane. The lighter pieces weighed 20 to 40 pounds and the heaviest 1,000 pounds.

The Plaintiff testified that he moved to Alabama because the back pain from the injury prevented him from performing his job duties. He claimed that he did not quit or retire because he could not afford to do so. However, he did apply for and receive social security retirement as soon as he moved. The Plaintiff said that he discussed the move with the operations manager, Jessie Gros (Gros), and agreed to continue working part-time as a salesman, using his contacts in Alabama. The Defendant paid him $500 per month, provided him with a company ear and gasoline credit card and also paid his medical insurance. He and Gros hoped the Plaintiffs back would get better and he could return to his job. However, his back pain did not improve, but worsened. He gradually stopped making any outside sales calls, although he continued to phone his contacts in Alabama. After several months, his back pain was so bad that it interfered with his ability to do anything. The Plaintiff stated that he cannot perform his old job because of the physical requirements and the necessary traveling back and forth from sales calls to the office four to five times a day.

Gros, the Vice-President and Treasurer of the company, testified that the Plaintiff worked in the Broussard, Louisiana facility when he was injured. In the past, he had worked in Morgan City, Louisiana and in the Alabama store until it was closed. Gros stated that the Plaintiff was a valuable asset to the company because of his oilfield knowledge and contacts. Gros wanted the Plaintiff to continue working because he was excellent at his job. Gros testified that replacing the Plaintiff was very difficult. He explained that people like the Plaintiff, with long years in the industry are hired for their knowledge and their contacts. They are hired primarily to sell. As store managers, they were neither expected to nor required to perform physical labor and the job is light duty. As an example, one 17store manager has a serious heart condition and he only comes into the office a few hours each day.

Gros testified that, in addition to selling, the store managers perform administrative duties, including setting up the schedules for the operators who do the physical labor, and the dispatchers. The store managers provide input as to who goes out on a job, order equipment as necessary, lay out the job for the operator, keep the facility painted, and contact the dispatchers when a job is ordered. The dispatcher then sends out the operator. Operators are on call 24 hours, seven days per week. The Plaintiff had two dispatchers and a training operator under his supervision. According to Gros, the Defendant did not want its store managers involved in the physical work. They have others to do that. Rarely would a store manager have to go on a job in the event no operators were available. In those cases, an extra worker would be hired.

Gros testified that he was under the impression that the Plaintiff went back to Alabama because he was going to retire. In order not to lose him completely, he offered him the part-time sales position. The Defendant had this same arrangement with four other employees. The Defendant tries to keep the experienced workers on the payroll because of who they know. One contact can generate a million dollar job, so it is worth it to keep these salesmen on the payroll. Gros stated that there is no paper trail or tracking method to determine what salesman generated which job because the jobs are ordered directly from the Defendant’s office, not by the salesman as in other industries and may arrive some time after the contact. In addition, more that one salesman are in the field developing relationships that hopefully will generate business in the future. For example, a job order initiated in Houston could have been the result of any one of the salesmen’s efforts, even the Plaintiffs in Alabama. Gros explained that is how oilfield sales work. In addition, Gros stated that these employees are not paid commissions, although they Rdo get reimbursed for expenses. Gros stated that the Defendant would only know that the Plaintiff had stopped working if the Plaintiff told someone at the company. Since he did not, he was kept on the payroll until he was terminated in February of 2000 due to the financial condition of the Defendant, which was still feeling the effects of the downturn in the industry. The Defendant would have terminated the Plaintiff sooner if it knew that he had stopped working.

David Ruttley, the Defendant’s Operations Manager, testified that he oversees the store managers, giving technical support and assistance with decisions. He participated in formulating the store manager job description. He stated that it is a light duty job that does not require lifting or exertion over 20 pounds, and that the store managers are not supposed to do the physical work. Ruttley claimed that the Plaintiff specifically telephoned him to tell him that he was going back to Alabama and intended to retire because he was tired, not because of his back injury.

The manifest error standard of review applies to factual findings in a workers’ compensation case. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380; Scuderi v. Crazy Johnnie Cafe, Inc., 02-243. p. 4 (La.App. 5th Cir.10/16/02), 831 So.2d 1037, 1040. In applying the manifest errorelearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Chaisson, 97-1225 at p. 13; 708 So.2d at 380; Scuderi, 02-243 at p. 4, 831 So.2d at 1040. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Gray v. H.B. Zachary Const. Co., 01-276, p. 6 (La.App. 5th Cir.9/25/01), 798 So.2d 271, 274; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, a|flfactfinder’s choice of them can never be manifestly erroneous or clearly wrong. Chaisson, 97-1225 at p. 14, 708 So.2d at 381; Scuderi, 02-243 at p. 4, 831 So.2d at 1040. Thus, if the factfinder’s findings are reasonable in light of the record, the court of appeal may not reverse or modify the judgment. Chaisson, 97-1225 at p. 14, 708 So.2d at 381; Scuderi, 02-243 at p. 4, 831 So.2d at 1040-1041.

In this case, the issue of prescription depends on whether the trial judge was clearly wrong in determining that the wages paid to the Plaintiff after he moved to Alabama were in lieu of compensation or indemnity benefits. The Plaintiff did not dispute that, after he moved, he originally earned wages as a part-time salesman. He claims however, that he was gradually unable to perform this light work and supports this with Dr. Vanland-ingham’s report sent to the Plaintiffs counsel in April of 1999 in the Alabama suit. Dr. Crotwell concluded otherwise the previous year. We recognize that the Defendant would have been aware of that letter because of the Alabama lawsuit, but the Defendant’s witnesses thought he was still making calls because he did not tell them that he had stopped working. The workers’ compensation judge found the Defendant’s witnesses credible. Based on all of the evidence, we find that the workers’ compensation judge was not clearly wrong in concluding that the wages were not paid in lieu of compensation as they were earned. As a result, the claim filed in Alabama had prescribed when it was filed and cannot interrupt prescription. Thus, the claim filed in Louisiana is also prescribed. Because we find that the Plaintiffs action is prescribed, we preter-mit discussion of the other issues.

Accordingly, the workers’ compensation judgment which dismisses Plaintiffs claims against the Defendant is affirmed. Costs of this appeal are to be paid by the Plaintiff.

AFFIRMED.


author: | ¡>THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Harry J. DUPRE.
    No. 03-KA-256.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   | ¡>THOMAS F. DALEY, Judge.

The defendant was found guilty of eight counts of first degree robbery in violation of R.S. 14:64.1. After being adjudicated a multiple offender, he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He has appealed his sentence as being excessive. For the reasons that follow, we affirm.

FACTS:

Eighty-two-year-old Joseph Smith (Smith) testified that, on April 10, 2001, he was working at the McKenzie’s Bakery at West Esplanade and Transcontinental when he was the victim of a robbery. Smith testified that, shortly after 10:00 a.m., a man walked into the store and picked up a package of cinnamon rolls and a drink and placed it on the counter. The man then demanded all the money in the register, brandished a silver gun, and instructed Smith not to pull the alarm. The man subsequently began taking money out of the register and putting it into a bag. [.After taking the money, the man ordered Smith to he down on the floor. The robber then exited with approximately $150.00, the cinnamon rolls, and a Coke. Smith then called 911. Smith testified that he could not positively identify defendant as being the individual who robbed him.

Alma Nuss (Nuss) testified that, on April 11, 2001, she was working at McKenzie’s Bakery located near Power Boulevard and David Drive when she was the victim of a robbery at approximately 10:00 a.m. Nuss testified that a man walked into the store, picked up a Coke, and walked to the register. Nuss then scanned the Coke and asked the man if there would be anything else, at which point the man asked for all the money in the register. Nuss panicked and the man became agitated, threatening to “blow her away” if she didn’t give him the money. The man then pulled up his shirt and pulled out a silver or chrome-colored gun. At that point, a female customer walked into the store. The man told Nuss not to say a word or he would “blow her away”. The customer picked up a package of cinnamon rolls and went to the counter and placed the cinnamon rolls and her purse on the counter, at which time her cellular phone began to ring. Upon hearing the phone ringing, the robber immediately left the store. Nuss explained to the customer what had happened and the customer called 911. The robber did not take anything from the cash register, but did take the Coke without paying. A surveillance camera captured the events on videotape and that tape was played for the jury. Nuss additionally testified that she was not able to identify the person who robbed her in a photographic lineup, nor was she able to make an in-court identification of defendant.

Judy Aguirre (Aguirre) testified that, on April 11, 2001, at approximately 6:30 p.m., she was working at the 7032 Veterans location of McKenzie’s Bakery when a man walked into the store and demanded all the money in the register. The man told Aguirre that he had a gun under his jacket. Although Aguirre did not see pthe gun, she testified that she did feel threatened. Aguirre then gave the defendant the money in the cash register. After taking the money, the defendant ordered her to lie on the floor. At trial, Aguirre was able to make a positive in-court identification of defendant as being the perpetrator of the robbery.

Leonta Barrow (Barrow) testified that she was employed at the E-Z Serve located at 2100 Cleary on April 12, 2001. On that date, a man walked into the store and asked for a pack of cigarettes and all the money in the cash register. He then lifted his shirt exposing a the handle of a gun. Barrow testified that the man stole approximately $35.00. After the man left the store, Barrow called the police. Barrow testified that she was shown a photographic lineup three days after the robbery in which she identified defendant as being the perpetrator. At trial, she made a positive in-court identification of defendant as being the man who had robbed her. Additionally, a videotape of the incident was shown to the jury.

Dawn Reno (Reno) testified that she was employed at McKenzie’s Bakery located on Jefferson. Highway on April 12, 2001 when she was the victim of a robbery perpetrated by defendant. Defendant walked into the store, picked up a Barq’s French Vanilla Créme Soda, and walked up to the counter. Defendant then demanded the money from the register and pulled up his shirt revealing a gun. Reno testified that she gave defendant the money and he left the store. Thereafter, Reno called the police. As a result of video surveillance, a videotape of the incident was recorded and played for the jury. Reno further testified that she was shown a photographic lineup after the robbery and was able to identify defendant as being the individual who robbed her.

Laurelle Banta (Banta) testified that she was working at Merita Bread store on April 13, 2001 when she was the victim of a robbery at approximately 11:00 in the morning. Banta testified that a man walked into the store and shopped around while other customers were in the store. When the customers left, the man walked |sup to the counter and Banta checked his items. At that point, the man raised a gun and demanded the cash out of the register. Banta gave the man the money. Banta testified that she was able to get a good look at the defendant because he was in the store for approximately 15 to 20 minutes. She explained that she looked straight into his eyes. As a result, she was able to identify defendant as the perpetrator of the robbery through a photographic lineup and additionally made a positive identification in open court. She also identified the clothes worn by the defendant during the robbery.

Mamie Hunt (Hunt) testified that she was working at a Texaco Station on Airline Highway on April 14, 2001 when she was the victim of a robbery. Hunt testified that a man walked into the store, picked up a Sprite, and put it on the counter. She testified that when she rang up the Sprite, the cash register drawer opened and the man demanded all the money in the register. Hunt placed money from the register into a bag which was taken by the man as he fled the store. Hunt testified that when the man asked for the money, he raised his shirt revealing the handle of a gun in the waistband of his pants. She testified that she got a good look at the robber and identified the clothes worn by the robber in court. Hunt made a positive in-court identification of the defendant, although she admitted that shortly after the robbery she was unable to positively identify the defendant from a photographic lineup.

Dennis Hebert (Hebert) testified that, on April 14, 2001, he was employed at an E-Z Serve convenience store located at 2525 West Metairie when he was the victim of a robbery. Hebert testified that a man walked up behind him as he was making coffee and asked him if he had ever been shot. Although Hebert did not see a gun, he testified that the robber had his hand under his shirt and poked him in the side with what he believed was a gun. The man then ordered Hebert to the register and demanded the money. Hebert gave him the contents of the register | Bthat totaled approximately $18.00. Defendant also took a pack of cigarettes and ordered Hebert to lie down on the floor. Hebert identified the defendant in a photographic lineup and made an in-court identification of defendant. In conjunction with Hebert’s testimony, a videotape of the robbery was played for the jury.

Detective Brian McGregor testified that on April 16, 2001 he presented a photographic lineup to Dennis Hebert. Hebert identified the defendant as the person who robbed him.

Sergeant Joseph Picone of the Jefferson Parish Sheriffs Office testified that he obtained a search warrant to search defendant’s vehicle. As a result of the search, a pair of blue jeans, a baseball cap, a Coke bottle, a French Vanilla Créme Soda, and a plastic gun were found in the vehicle. Those items were introduced into evidence at trial. The clothing and hat were identified by several of the victims as being worn by defendant during the robberies.

Detective John Carroll testified that he interviewed defendant concerning the robberies. Detective Carroll testified that he advised defendant of his constitutional rights and defendant signed a waiver of those rights. Afterwards, defendant gave a statement to Detective Carroll that was recorded and played for the jury at trial. In the statement, defendant indicated his involvement in seven of the eight robberies. The only robbery for which defendant did not give a' statement concerned the robbery of Dennis Hebert at the E-Z Serve located at 2525 West Metairie.

At the conclusion of trial, the defendant was found guilty as charged on all counts. After being adjudicated a multiple offender, he was sentenced to life in prison plus an additional 40 years on each count to run consecutively. He has appealed claiming the sentence imposed is excessive.

I DISCUSSION:

On appeal, defendant contends that, while he was properly sentenced under the pre-amendment version of LSA-R.S. 15:529.1 to life imprisonment, the trial court should have considered whether the ameliorative changes to the habitual offender statute merited a Dorthey departure from a sentence of life imprisonment.

A review of the record indicates that defendant did not request a Dorthey departure during his sentencing as a third felony offender. Furthermore, while defendant did orally object to his sentence as being excessive, he failed to file a Motion to Reconsider Sentence as required by LSA-C.Cr.P. art. 881. The failure to file a Motion to Reconsider Sentence or to state the specific grounds on which the motion is based, limits a defendant to a review of the sentence only for constitutional’excessiveness. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, writ denied, by State v. Patterson, 99-3217 (La.4/20/00), 760 So.2d 842. Accordingly, we will review the sentence for constitutional excessiveness.

The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, art. I, § 20. The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993). When a trial court determines that the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is | «“grossly out of proportion to the severity of the crime,” the trial judge must réduce the sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d at 1280; State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 383. However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 709 So.2d at 676; State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” State v. Harbor, 817 So.2d at 227.

When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Further, if the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. Johnson emphasized that a downward departure from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in “rare situations.” State v. Johnson, 709 So.2d at 677.

In the instant case, defendant for the first time on appeal argues that the trial court erred in failing to execute a Dorthey departure in this case where the underlying offense involved the use of a toy gun and no injuries were inflicted upon the victims. However, the defendant has not demonstrated any exceptional circumstances to justify a downward departure from the mandatory minimum |flsentence. At his enhanced sentencing, defendant failed to present any evidence or make any argument regarding a downward departure from the mandatory minimum sentence. Thus, we find that defendant has failed to carry his burden under Johnson, Accordingly, we find that defendant’s life sentence is not excessive. See, State v. Harris, 02-873 (La.App. 5 Cir. 1/28/08), 839 So.2d 291,.

Defendant also requested that the record be reviewed for errors patent. The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975). The review reveals an error patent in this case.

The record does not indicate that the trial court advised defendant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. Accordingly, this matter is remanded to the trial court and the trial court ordered to inform the defendant of the provisions of LSA-C.Cr.P. art. 930.8 by sending written notice to the defendant within ten days of the rendition of this Court’s opinion and to file written proof that defendant received the notice in the record. State v. Ware, 01-194 (La.App. 5 Cir. 8/28/01), 795 So.2d 495.

CONCLUSION:

For the foregoing reasons, the defendant’s sentence is affirmed. This matter is remanded to the trial court for the limited purpose of informing the defendant of the provisions of C.Cr.P. art. 930.8.

AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.

      . Defendant correctly cites State v. Harris, 02-873. (La.App. 5 Cir. 1/28/03), 839 So.2d 291, 2003 and State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, noting that this Court has held that the pre-amendment version of LSA-R.S. 15:529.1 applies when the underlying offense is committed before the effective date of Act 403’s effective date.

      . Defendant does not appear to challenge his sentences on counts two through eight as being excessive nor does he brief the matter.

      . Defendant has not appealed his consecutive sentences on the remaining seven counts of robbery.


author: | ^THOMAS F. DALEY, Judge.

text:
    Rosario J. MANCUSO, Steven J. Mancuso and his spouse, Terry A. Mancuso v. William J. POOLE, Sherry Fredley, XYZ Insurance Company and Allstate Insurance Company.
    No. 03-CA-119.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Gerald P. Webre, Webre Law Firm, APLC, Metairie, LA, for Plaintiffs/Appellants.
    Coleman T. Organ, Law Offices of Harold Toscano, New Orleans, LA, for Defendant/Appellee, Allstate Insurance Company.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   | ^THOMAS F. DALEY, Judge.

The plaintiffs, Rosario J. Mancuso, Steven J. Mancuso, and Terry A. Mancuso, have appealed the trial court’s judgment dismissing their claims. For the reasons that follow, we affirm.

FACTS:

On February 25, 1999, Rosario Mancuso was driving his 1989 Toyota Cressida when he was rear-ended by a car driven by William Poole (Poole) and owned by Sherry Fredley (Fredley). Steven and Terry Mancuso were passengers in Rosario’s car. Neither Poole nor Fredley maintained liability insurance at the time of the accident. Plaintiffs filed suit against Allstate Insurance Company (Allstate), Rosario’s uninsured motorist carrier, for personal injuries sustained in the accident. Following trial, the trial court rendered judgment in favor of Allstate and against plaintiffs, dismissing their claims with prejudice.

At trial, Rosario testified that he previously worked for New Orleans Public Service when he was injured in an at work accident. He returned to work after this 1 ^accident, only to develop Guillain-Barre Syndrome, an autoimmune process that attacks the nerves. Initially, he was very ill and on a ventilator, but the illness improved such that he recovered, but was left with nerve damage in his legs. He had not worked since the development of this syndrome. He was treated for this illness by a neurologist, Dr. Maria Palmer. He testified that he stopped seeing Dr. Palmer in 1997 because the pain in his legs had stopped.

Rosario Mancuso testified that he had been in an auto accident in 1997 and that he was treated by Dr. Richard Meyer for a back sprain. He explained that he was discharged from Dr. Meyer’s care four to six months prior to the February 1999 accident.

He testified that the February 1999 accident occurred as he was stopped on Interstate 10 and was struck from behind. He explained that his car was pushed four to six feet by the impact. Rosario testified that there was no visible damage to his car after this accident, but it was later discovered that the brackets holding the bumper to the car were damaged. These brackets were changed by his son, Steven, who is a certified mechanic.

Following the accident, Rosario Mancu-so sought treatment from a chiropractor, Dr. Richard Hages, who preformed treatments on his back. His condition did not improve, so Dr. Hages referred him to a neurosurgeon, Dr. Bradley Bartholomew, who performed steroid injections in his back in an attempt to relieve his pain. These injections offered some relief, but he also sought treatment from Dr. Palmer for his back pain.

Rosario Mancuso testified that he continues to have pain in his back and down his legs. He remains under the care of Dr. Maria Palmer. Prior to this accident he testified he was not taking pain medication, but is now taking Vicodin and Cele-brex.

| ¿On cross-examination, Rosario Mancu-so admitted that in his pre-trial deposition, he testified that he had had no back pain for one year prior to this accident. It was brought out that this was in conflict with his testimony on direct examination that he had been treated by Dr. Richard Meyer for back pain up until late 1998.

The records and deposition of Dr. Palmer were admitted into evidence. These corroborate that Rosario Mancuso was treated by Dr. Palmer for Guillain Barre Syndrome in the 1980’s and his last visit with Dr. Palmer prior to the February 1999 accident was in 1997. In her deposition, Dr. Palmer explained that Rosario had suffered a severe case of Guillain-Barre syndrome that left him with permanent nerve damage in his legs. This nerve damage manifested itself by intermittent leg pain that had improved over the years. She explained that the nerve pain was worse with stress or weather changes. Rosario then developed arthritis in the back. She explained that an MRI performed in April 1996 showed degenerative changes in the lumbar spine and Dr. Palmer diagnosed Rosario as having moderately advanced chronic hypertrophic facet joint degenerative changes.

Dr. Palmer testified that Rosario Man-cuso presented to her office in September 1999 complaining of back pain from an accident that occurred in February of that year. His pain started on the top of his iliac crest and radiated to his thighs. Dr. Palmer explained that this pain could be due to the accident, or it could have been caused by a tight belt. She did not know the cause of that pain. She further testified that the pain in Rosario’s legs after the February 1999 accident was caused by the residual nerve damage from the Guil-lain-Barre Syndrome rather than a back injury sustained in the accident. She disagreed with Dr. Bartholomew’s report stating the pain was coming from his back stating that Dr. Bartholomew was not aware of the severity of the Guillain-Barre.

15Pr. Palmer concluded that Rosario Mancuso had similar pain prior to the accident, but it was worse following the accident. Dr. Palmer opined that the accident may have aggravated or caused a flare up of pain, but Rosario had similar pain prior to the accident. She stated that the accident did not cause more damage to the nerves, but it lowered his threshold for pain because of the stress of the back pain. She was unable to state if the back pain would ever go away since it was two years post accident and he was still experiencing pain.

The medical records and deposition testimony of Dr. Richard Meyer were admitted into evidence. This evidence indicates that Dr. Meyer treated Rosario for a lumbar strain sustained in a motor vehicle accident on October 30, 1997. Rosario complained of low back pain with bilateral buttock pain and occasional leg pain throughout 1998. Dr. Meyer noted that Rosario’s leg pain pre-existed the 1997 accident and was a result of the Guillain-Barre. X-rays showed degenerative changes in the lower back. Dr. Meyer’s diagnosis was lumbar strain and degenerative disc disease. Dr. Meyer treated Rosario for these injuries until October 1998. The medical records for the last visit on October 27, 1998 state that Rosario had no leg pain.

Medical records from Dr. Hages, a chiropractor, indicate that Rosario was treated from March 1999 through April 2001 for “acute traumatic lumbar sprain/strain aggravated by hyperlordosis and facet imbrication complicated by degenerative joint disease and Guillará Barre syndrome neu-ropathy.”

Medical records from Dr. Bradley Bartholomew, a neurosurgeon, indicate that epidural steroid injections were administered in the summer of 1999 for low back pain extending into both legs. The records indicate that Rosario Mancuso experienced some relief from the injections.

Steven Mancuso (Steven) testified that he was a passenger in his father’s car at the time of the February 25,1999 accident. He explained that they were stopped | fion the interstate when they were struck from behind. He testified that it was a “solid hit” that moved the car forward three to four feet. He felt something pop in his back.

Steven testified that the bumper on the car that hit them was “hanging off.” He explained that the damage to his father’s car was to the brackets holding the bumper and this damage was only visible from underneath the car. He described the brackets as being “crushed.” He changed the brackets because he always performed maintenance and repairs on his father’s automobiles.

Steven testified that he had been disabled since an accident that occurred in 1995. The 1995 accident left him with three ruptured lumbar disc. He explained that surgery had been recommended, however, he chose not to have surgery, but to control his pain with medication. He had been treated by Dr. Jeffrey Sketchier and Dr. Daniel Seltzer. Steven explained that prior to the 1999 accident, he had pain on the right side that radiated from his back. Following the 1999 accident, he began to experience left sided pain. Steven explained that just after the accident the pain was more severe, but as time has gone by the pain gets better. He now takes Darvon, Naproxen, and Desyrel to control the pain. When questioned about his activities, Steven acknowledged that he goes shrimping four to five times per year, but denied being a commercial shrimper. He explained that he brings others along to lift the trawling nets.

On cross-examination, Steven testified that prior to the 1999 accident, he experienced daily pain, but it did not keep him from doing things. It was brought out that at his deposition he testified that his pain prior to the 1999 accident was moderate to severe. He was also impeached by deposition testimony in which he stated that prior to the accident he had left leg pain and now had right leg pain. It was also brought out in cross examination that Dr. Sketchler’s records showed that throughout 1998, Steven received monthly prescriptions for Darvon and [ 7complained of chronic back pain. This continued into 1999. Steven testified that he began to visit Dr. Seltzer because his wife went to Dr. Seltzer. He admitted that he did not tell Dr. Seltzer that he was seeing Dr. Sketchier because Dr. Seltzer would not have given him pain medication.

The office records of Dr. Sketchier were admitted into evidence. These records indicate that Steven first sought treatment from Dr. Sketchier in September 1995 for complaints of low back pain. An MRI performed in November 1995 showed two ruptured discs. He was referred to a neurosurgeon, who recommended surgery, but the records indicate Steven elected to treat his pain with medication. The records indicate that he had chronic back pain with radiation into his left leg. He received monthly prescriptions for narcotic pain relievers throughout 1996, 1997, and 1998. On January 15, 1999, the record indicates that Steven continued to complain of chronic back pain radiating into his left leg and was being treated with Darvon and Naprosyn. He did . not return to Dr. Sketchier until June 7, 1999 and there is no mention of the February 1999 accident in that visit. The record indicates that his back had been “acting up” since last week, which was the beginning of trawling season. He was given an injection for the pain. He returned to Dr. Sketchier on September 17, 1999, February 14, 2000, and July 31, 2000 with continued complaints of low back pain radiating into his left leg.

The office records and deposition of Dr. Daniel Seltzer were also admitted into evidence. Dr. Seltzer’s records indicate that Steven first visited Dr. Seltzer on May 4, 1998 for pain management. Dr. Seltzer noted Steven had multilevel disc herniation with some nerve impingement. Dr. Seltzer treated Steven with Desyrel, Darvon, and Naprosyn. On February 12, 1999, Dr. Seltzer’s records indicate that Steven complained of discomfort in his back. He had decreased range of motion, but no spasms. The records indicate that Steven returned to Dr. Seltzer’s office on March 3, 1999 with complaints of increased back pain radiating into his left hip |sand thigh. The record notes that he has had a change in both the location and severity of his pain. An MRI was performed that did not show any new changes.

In his deposition, Dr. Seltzer testified that he was comfortable treating Steven without surgery as long as Steven did not “deteriorate neurologically.” In going over his office records, Dr. Seltzer noted that Steven was a “commercial shrimper”. Dr. Seltzer testified that Steven returned to him on a monthly basis throughout 1999 complaining of back pain with occasional spasms. He had good days and bad days. By October 27, 1999, Dr. Seltzer testified that Steven had stabilized and continued on “routine medications.” Dr. Seltzer testified that Steven continued to return to his office on a monthly basis throughout 2000 and continued to complain of back pain that was related to increased activity. The pain was controlled by medication. Dr. Seltzer testified that the June 2000 visit indicates that Steven was trawling again. Dr. Seltzer explained that Steven told him he takes younger people along so that Steven did “supervisory work.” Dr. Seltzer felt that the waves moving the boat were the discomforting factor of trawling for Steven. Another MRI was performed in January 2001. There was no significant change.

Dr. Seltzer concluded that Steven believed that his back condition deteriorated as a result of the 1999 accident, but this was not substantiated on any tests that were performed. After the 1999 accident, Steven continued to complain of back pain, but the difference was that pain was referred to his left leg and hip. He testified that Steven did require an increase in the dosage of his medications after the 1999 accident. Dr. Seltzer testified that Steven’s complaints were consistent with his physical examination.

Terry Mancuso (Terry), Steven’s wife, testified that she was on disability at the time of the 1999 accident. She had been injured in July of 1989 when a ramp at a dump site where she was working collapsed, injuring her back. She testified that she had nerve damage that caused continual pain. She was initially treated by |aDr. Riehlman, who became ill and referred her to Dr. Daniel Seltzer. She had been under Dr. Seltzer’s care since 1992. In 1996 she slipped and fell sustaining an injury to her knee that required surgery. After the 1999 accident, she was involved in another accident that resulted in a neck injury that required surgery.

Terry explained that there was a moderate impact in the 1999 accident that pushed their vehicle forward. She testified that the 1999 accident caused an increase in her back pain. She described her pre-accident pain as a 7 (on a scale of 1 to 10) and testified that the accident caused her pain to increase to a 9. At the time of trial, her pain level was back to 7. Terry testified that her injury from the 1999 accident lasted until about March 2002. ■ Prior to and following the 1999 accident she took Darvon and Desoryl for pain. The dosages were increased for a period of time following the 1999 accident.

The office records and deposition of Dr. Seltzer were admitted into evidence. Dr. Seltzer testified that he began treating Terry in October 1992 for back pain. He explained that she has no definite disc herniation, but she does have some degree of degenerative changes. Dr. Seltzer testified that Terry had chronic pain in her back during 1996 and 1997. In 1997 she injured her knee, which resulted in surgery. When she recovered from the knee, she continued to complain of back pain. He noted one visit in September 1998 in which Terry complained of unbearable pain. A repeat MRI was performed that showed two small bulges and degenerative changes. Physical examination showed spasms at times. Dr. Seltzer testified that in January of 1999 Terry had had a “couple of bad weeks”, which they thought was from the cold weather. On February 12, 1999 he examined Terry and noted that she had good days and bad days and “she appeared to be returning to baseline level.” Terry returned to his office on March 11,1999 and stated that she had been in an accident in February. She complained of increased low back pain with radiation into her left hip and thigh. She had decreased range of motion |inand spasm. Dr. Seltzer testified that Terry continued to have increased pain in April, May, and June. He testified that she clearly had increased pain following the accident, but by June and July she was starting to get back to her pre-accident level of pain and that by the fall of 1999 there was no difference in her pain. Dr. Seltzer then stated that only the patient can state when they returned to baseline pain level. He stated that Terry’s perception of the aggravation probably lasted through 2000 and into 2001. He opined, based in his physical exam, that her aggravation of her preexisting condition lasted 10 months. Dr. Seltzer testified that throughout 2000 -Terry had the same complaints she had before the 1999 accident.

The only witness called by Allstate was Sherry Fredley, who testified that she owned the vehicle that struck the plaintiffs. She estimated that at the time of the impact, they were traveling 8 miles per hour. Ms. Fredley testified that her vehicle was not damaged in this accident.

At the conclusion of trial the trial judge took the matter under advisement. He then rendered judgment in favor of Allstate and against plaintiffs. In his reasons for judgment, the trial judge stated that the testimony and evidence establish that the plaintiffs are not credible witnesses. DISCUSSION:

On appeal, the plaintiffs argue that the trial judge erred in ruling in favor of Allstate when the unrefuted medical evidence introduced at trial proved that the accident did in fact cause plaintiffs’ injuries. Plaintiffs contend that Allstate introduced no evidence whatsoever to contradict the medical testimony and evidence offered by plaintiffs. Plaintiffs conclude that in the absence of any medical testimony to the contrary, the trial court was clearly wrong and manifestly ^erroneous for finding the plaintiffs were not injured in the February 25,1999 accident.

Allstate responds that the trial judge based his decision on both the inconsistent testimony of plaintiffs and the medical evidence that showed no objective evidence of injury. Allstate contends that any opinion regarding aggravation of the plaintiffs’ pre-existing condition was based on plaintiffs’ statements rather than a change in their physical condition.

A review of the testimony and evidence submitted in this case reveals many inconsistencies. Both Rosario and Steven Man-cuso testified that the front bumper of the vehicle that hit them was damaged in this accident, whereas the owner of that vehicle, Ms. Fredley, testified that her vehicle was not damaged in the accident. The police report indicates there was no damage to either vehicle. Rosario Mancuso testified in his deposition that he had no back pain during the year prior to this accident, while at trial he acknowledged that he was under the care of an orthopedist, Dr. Meyer, for back pain until four to six months prior to this accident. Dr. Meyer’s office records indicate that Rosario was treated for back pain from November 1997 until October 1998. Additionally, the medical records of Dr. Palmer who treated Rosario for years prior to this accident, indicate that when Rosario went to Dr. Palmer in 1999 following this accident, he told her he had not been under the care of any physicians since 1997. Moreover, Dr. Palmer explained that the pain in Rosario’s legs was due to nerve damage as a result of an earlier illness.

Steven Mancuso’s testimony was also impeached by inconsistencies. At trial, Steven testified that prior to this accident, his pain was going away to the extent that he had occasional mild back pain. In his deposition, Steven described his pain prior to the accident as “moderate to severe.” He further testified that prior to the accident he did not have left sided pain. However, the medical records |13of both Dr. Sketchier and Dr. Seltzer indicate that Steven had pain radiating into his left pain prior to this accident. Additionally, at trial, Steven denied being a commercial shrimper while Dr. Seltzer’s records make several references to Steven’s back pain increasing during trawling season and Dr. Seltzer states in his deposition that Steven was a commercial shrimper.

Terry Mancuso testified that she experienced continuous pain prior to this accident and that after the accident, she experienced an increase in the severity of her pain. She testified that this increase in pain lasted until March 2002. However, Dr. Seltzer wrote in the office notes dated April 21, 1999 “level of pain rapidly approaching the way it was prior to this accident.”

In its reasons for judgment, the trial court stated that “the plaintiffs are not credible witnesses.” The rule of “falsus in uno falsus in omnibus” provides that if one element of a witness’ testimony is proved to be untrue, the entirety of that witness’ testimony may be rejected by the trier of fact. This doctrine does not require rejection of the witness’ total testimony. The weight to be given the remainder of the witness’ testimony is to be determined by the trier of fact, given the circumstances of each case. Anglin v. White, 572 So.2d 779 (La.App. 4th Cir.1990).

In Rosell v. ESCO, 549 So.2d 840, (La.1989), the Court stated:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong 113standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

[citations omitted]

In its reasons for judgment, the trial court stated that “the plaintiffs are not credible witnesses.” Our courts have recognized that the reasons for the principles of appellate review are based on the trial court’s ability to evaluate the demean- or of live witnesses while the appellate court is at a disadvantage by reviewing this testimony from a cold record. Leal v. Dubois, 00-1285 (La.10/13/00), 769 So.2d 1182. The issue before the appellate court is not whether the judgment rendered was right or wrong, but whether the trial of fact’s conclusions were reasonable given the evidence presented. Touchard v. Slemco Elec. Foundation, 99-3577 (La.10/17/00), 769 So.2d 1200. Thus, when the trier of fact’s determinations are based on the credibility of witnesses, that finding can almost never be manifestly erroneous or clearly wrong. Id.

If this court had been the trier of fact, it may have concluded that the plaintiffs did suffer injuries that aggravated their preexisting conditions, however, the testimony of all the witnesses and the evidence submitted in this case provides a reasonable factual basis for the trial court’s finding that the plaintiffs were not injured in this accident. We do not find that the trial judge committed manifest [ 14error in finding that the plaintiffs were not injured in this accident. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


author: WALLER, Justice, for the court. SMITH, Presiding Justice,

text:
    Ronald Chris FOSTER a/k/a Ron Chris Foster v. STATE of Mississippi.
    No. 95-DR-00750-SCT.
    Supreme Court of Mississippi.
    Feb. 19, 2003.
    Silas W. Mediaren, James W. Craig, Andre De Gruy, Jackson, attorneys for appellant.
    Office of the Attorney General by Marvin L. White, attorneys for appellee.
   ON MOTION FOR REHEARING

WALLER, Justice, for the court.

¶ 1. The motion for rehearing is granted. The previous order and dissenting statements are withdrawn, and these opinions are substituted therefor.

¶ 2. This matter is before the Court on the Successive Application for Leave to File Motion to Vacate Death Sentence and Motion for Stay of Execution filed by Ronald Chris Foster, the response filed by the State of Mississippi and the reply brief filed by Foster. Foster’s direct appeal from his conviction for capital murder and sentence of death was first affirmed by this Court in Foster v. State, 639 So.2d 1263 (Miss.1994), cert. denied, 514 U.S. 1019, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995). Foster then filed for post-conviction relief, which was denied by this Court. See Foster v. State, 687 So.2d 1124 (Miss.1996), cert. denied, 521 U.S. 1108, 117 S.Ct. 2488, 138 L.Ed.2d 996 (1997). On post-conviction, Foster claimed ineffective assistance of counsel based on trial counsel’s failure to (1) investigate adequately and present mitigation evidence at the sentencing phase of his trial; (2) present information about Foster’s upbringing and childhood; (3) request a transfer of his case to youth court; (4) raise on direct appeal issues pertaining to the circuit court’s denial certain jury instructions; and (5) object to certain aggravating factors.

¶ 3. Foster then sought habeas corpus relief in the United States District Court, the United States Court of Appeals for the Fifth Circuit and the United States Supreme Court. See Foster v. Johnson, 293 F.3d 766 (5th Cir.2002), cert. denied sub nom Foster v. Epps, 537 U.S. 1054, 123 S.Ct. 625, 154 L.Ed.2d 532 (2002), rehearing denied, 537 U.S. 1098, 123 S.Ct. 816, 154 L.Ed.2d 766 (2003). Foster’s federal remedies were exhausted when the Supreme Court denied his petition for writ of certiorari.

¶ 4. The State of Mississippi then filed a motion to reset execution date. This Court granted the motion by order dated December 10, 2002; and set Foster’s execution date for January 8, 2003.

¶ 5. On January 2, 2003, Foster filed his Successive Application for Leave to File Motion to Vacate Death Sentence and Motion for Stay of Execution with this Court. The State filed its response.

¶ 6. On January 6, 2003, Governor Ronnie Musgrove issued a reprieve with respect to Foster’s execution. Governor Musgrove stated that the United States Supreme Court, in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), “declared that the execution of persons who are mentally retarded is unconstitutional and the issue of whether Foster is mentally retarded has not been specifically addressed under the guidelines set forth in the Atkins decision.... ” Governor Musgrove further stated that “there is pending before the United States Supreme Court a petition to hear a case concerning the constitutionality of the application of the death penalty to juvenile offenders, those persons under the age of 18, and a decision by the highest court in the land whether to consider reviewing the specific issue of whether a 17 year-old offender such as Foster can be constitutionally sentenced to death will be made in a matter of weeks.... ” The Governor finally stated that the reprieve would be in effect until there was “a determination by the Mississippi Supreme Court and the United States Supreme Court as to the application of the constitutional issues set forth above to the Foster matter.”

¶ 7. The State argues that Foster’s request is barred as a successive application, is untimely filed, and none of the statutory exceptions are applicable. See Miss.Code Ann. §§ 99-39-5(2) & 27(9) (Supp.2002).

I. WHETHER FOSTER SHOULD BE AFFORDED AN ATKINS HEARING.

¶ 8. Foster first alleges that he is mentally retarded and that, under Atkins, his execution is prohibited by the Eighth Amendment to the United States Constitution. As the Supreme Court stated in Atkins:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Waimurigkt, with regard to insanity, “we leave to the Statefs] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” 477 U.S. 399, 405, 416-417, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

Atkins, 536 U.S. at 317, 122 S.Ct. at 2250. The Court noted that “[t]he statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n. 3, supra,” id. at 317 n. 22, 122 S.Ct. 2242, as stated below:

The American Association of Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1992). The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id., at 42 — 43.

Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. at 2245 n. 3.

f 9. Foster relies primarily on a psychological evaluation performed on December 31, 2002, by Dr. Marc L. Zimmerman. Dr. Zimmerman stated that he administered the Wechsler Adult Intelligence scale III, Benton Visual Retention Test and the screening test for the Luria-Nebraska Neuropsychological Battery-Adult form. Dr. Zimmerman states that Foster’s performance on the Wechsler

was in the mildly mentally retarded range. Specifically, his verbal IQ was 68 (within the second percentile) and his performance score was 59 (the .03 percentile). His full scale score is 62 (the first percentile). His sister’s responses to the Vineland indicate that he is functioning and always has functioned at an adaptive level consistent with the Wech-sler scores. The tests of neuropsycho-logical functioning are consistent with a diagnosis of mental retardation.

¶ 10. Foster also relies on the affidavit of his sister, Sandra Foster. Dr. Zimmerman administered the Vineland Adaptive Behavior scales to Sandra Foster. Sandra Foster states that “[w]hen Ron was in Vine Elementary School in Aberdeen, the school tested Ron to decide what level he should attend at the school. After the test, Ron was placed in classes in the Annex, which was for the remedial or special classes. This was when Ron was in the third and fourth grades. Ron attended special classes from that time until he left school.”

¶ 11. The State relies on an IQ test it states was performed at Whitfield in 1990, where Foster was allegedly shown to have an IQ of 80. This test result has been cited by this Court, by the United States District Court, by the United States Court of Appeals, and by Foster himself in pleadings before this Court. At this point the source of this IQ score is a mystery, as it cannot be found in Foster’s appeal record. Even assuming that Foster’s IQ is 80, that determination alone does not address all the criteria of Atkins. It is clear that a finding of retardation under Atkins includes intellectual functioning and numerous other factors. It is also clear that no judicial determination has been made as to Foster on the factors set out in Atkins.

¶ 12. We find that Atkins is an intervening decision under Miss.Code Ann. § 99-39-27(9) (Supp.2002), such that the procedural bars raised by the State, that of timeliness and successive application, are not applicable here. We further find that, under the Eighth Amendment as construed by the Supreme Court in Atkins, Foster is entitled to an evidentiary hearing on the issue of his alleged mental retardation. Foster has the burden of proof at the evidentiary hearing. See Miss.Code Ann. § 99-39-23(7) (“no relief shall be granted under this chapter unless the prisoner proves by a preponderance of the evidence that he is entitled to such”).

¶ 13. After careful consideration we find that Foster should be granted leave to proceed in the trial court on the sole issue of whether he is mentally retarded such that he may not be executed under Atkins v. Virginia. To that end the standard or definition of mental retardation shall be that enunciated by the Supreme Court in Atkins, especially the American Psychiatric Association’s definition of mental retardation. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV 39-46 (4th ed.1994). We further hold that the Minnesota Multipha-sic Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales make the test best suited to detect malingering. See id. at 683 (defining malingering as the “intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs”). See also United States v. Battle, 235 F.Supp.2d 1301, 1307 (N.D.Ga.2001) (explaining MMPI and its validity scales and stating that “[t]he MMPI is generally agreed to be difficult to cheat on without getting caught”). Foster must prove that he meets the applicable standard by a preponderance of the evidence pursuant to Miss.Code Ann. § 99-39-23(7). This issue will be considered and decided by the circuit court without a jury.

II. WHETHER FOSTER’S AGE AT THE TIME OF THE CRIME PROHIBITS THE IMPOSITION OF THE DEATH PENALTY.

¶ 14. Foster next argues that his execution is prohibited by the Eighth Amendment because he was seventeen years old at the time he killed George Shelton. Foster argues that the same national consensus that caused the United States Supreme Court to ban the execution of the mentally retarded in Atkins also exists in opposition to execution of those who committed their crimes as juveniles, and this Court should recognize such a prohibition at this time. This Court finds that the United States Supreme Court has prohibited the execution of those who committed their crimes at age fifteen in Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988), but declined in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), to do so for those who committed their crimes at age sixteen or seventeen. The United States Supreme Court recently declined to grant relief on this issue. See In re Stanford, — U.S. -, 123 S.Ct. 472, 154 L.Ed.2d 364, rehearing denied, — U.S. -, 123 S.Ct. 715, 154 L.Ed.2d 649 (2002). This issue is without merit.

CONCLUSION

¶ 15. Ronald Chris Foster’s Successive Application for Leave to File Motion to Vacate Death Sentence and Motion for Stay of Execution is granted in part to the extent that Foster is granted leave to proceed in the trial court on the issue of his alleged mental retardation pursuant to Atkins v. Virginia. Foster’s successive application is denied in all other respects.

¶ 16. POST-CONVICTION RELIEF GRANTED IN PART, DENIED IN PART.

PITTMAN, C.J., COBB AND CARLSON, JJ„ CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN RESULT ONLY. SMITH, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. McRAE, P.J., AND EASLEY, J., NOT PARTICIPATING.

SMITH, Presiding Justice,

concurring in part and dissenting in part:

¶ 17. I concur with the majority only to the extent that it denies post-conviction relief to Ronald Chris Foster. However, I respectfully dissent from the majority’s granting Foster leave to seek post-conviction relief in the trial court based on his alleged mental retardation and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

¶ 18. The Posb-Conviction Collateral Relief Act places the burden of proof upon Foster to sufficiently prove that he is indeed mentally retarded to such an extent that he may avoid the death penalty. Miss.Code Ann § 99-39-23(7) (Supp.2002). In my view Foster has failed to provide sufficient proof of his mental retardation in accordance with the guidelines of the Supreme Court as stated in Atkins. Thus, he has not met his burden of proof so as to entitle him to another hearing before the trial court. This issue is procedurally barred pursuant to Miss.Code Ann. § 99-39-5(2) & -27(9) (Supp.2002), and none of the statutory exceptions are applicable including the intervening decision of Atkins. Foster thoroughly pursued at trial level, initial appeal, and on a prior post-conviction relief petition the issue of mental retardation sufficiently to withstand the guidelines and pronouncements of Atkins. Post-conviction remedy proceedings are statutorily designed to make known to the Court “facts not known at time of judgment.” Foster v. State, 687 So.2d 1124, 1129 (Miss.1996); Williams v. State, 669 So.2d 44, 52 (Miss.1996). The proof in this record sufficiently supports that Foster is not mentally retarded to such an extent as to require an additional Atkins hearing. Foster’s successive application for post-conviction relief should be dismissed in its entirety.

¶ 19. For these reasons, I respectfully concur in part and dissent in part.


author: GRAVES, Justice, for the Court.

text:
    PARADISE CORPORATION v. AMERIHOST DEVELOPMENT, INC., an Illinois Corporation.
    No. 2001-CA-01847-SCT.
    Supreme Court of Mississippi.
    June 19, 2003.

      Paul E. Rogers, Jackson, attorney for appellant.
    Richard M. Dye, Phil B. Abernethy, Jackson, attorneys for appellee.
    Before PITTMAN, C.J., EASLEY AND GRAVES, JJ.
   GRAVES, Justice, for the Court.

¶ 1. This appeal arises from a judgment of the Warren County Circuit Court denying Paradise Corporation and Paradise Pools Construction, Inc.’s (Paradise) motion to dismiss a writ of garnishment filed by Amerihost Development, Inc. (Ameri-host). On appeal, Paradise presents the sole issue of whether Amerihost is entitled to garnish the bank account of Paradise Corporation to collect a judgment entered against Paradise Pools and Spas, Inc.

FACTS

¶ 2. Amerihost was the developer of the Days Inn Hotel project in Vicksburg. Amerihost entered into a construction contract with Bromanco, Inc., a general contractor, as a prime contractor for the construction project. Bromanco defaulted on the general contract with Amerihost. At the time that Bromanco defaulted, the project was substantially completed; therefore, Amerihost completed the project itself. Litigation ensued between Amerihost and Bromanco along with numerous contractors and materialman, including Paradise Pools and Spas. See generally Amerihost Dev., Inc. v. Bromanco, Inc., 786 So.2d 362 (Miss.2001). Amerihost filed a complaint in interpleader for the purpose of interpleading certain remaining contract balances held by Ameri-host against Bromanco on November 15, 1995. A judgment was entered on April 15, 1998, pursuant to the complaint. The court ruled that Paradise Pools and Spas should recover $12,656.46 from Amerihost. The court later issued a writ of garnishment allowing Amerihost to recover the $12,656.46 back from Paradise Pools and Spas on September 25, 2001.

¶ 3. Paradise Pools, Inc. a/k/a Paradise Pools and Spas was incorporated in 1981. It owned two retail businesses and a construction operation. Paradise Pools and Spas entered a contract with Bromanco to construct a pool in Vicksburg at the Rainbow Park. Paradise Pools and Spas received its final payment as a result of the lawsuit between Amerihost and Bromanco.

¶4. Paradise filed a motion to dismiss writ of garnishment on October 23, 2001, on the basis that it was not a party to the proceeding. On November 2, 2001, the court denied the motion to dismiss. The court reasoned that

It seems like the corporation, whatever their particular entity was, [sic] have always operated under the name Paradise Pools and Spas, which was never not the corporate name of either one of them. But both of them seemed to [sic] operated under the name. And I’m going to say they are estopped to deny that they were responsible for those debts. They’ve held themselves out as being Paradise Pools and Spas, whatever the underlying corporation name was and in all the pleadings up through '98 and up to the present they’ve held themselves out to be Paradise Pools and Spas, and I’m going to refuse the Motion to Dismiss the Garnishment.

From this judgment, notice of appeal was filed on November 26, 2001.

DISCUSSION

¶ 5. Paradise argues that it was never a party to the construction contract upon which the judgment was based. Paradise asserts that the contract was dated September 29, 1994, and Paradise was incorporated in December 1995. Paradise argues that when it acquired the assets of Paradise Pools and Spas in 1996, it did not assume Paradise Pool and Spas’ liabilities.

¶ 6. The general rule states that a corporation which acquires the assets, but not the stock of another corporation, is not obligated for the liabilities of the acquired corporation. Huff v. Shopsmith, Inc., 786 So.2d 383, 388-89 (Miss.2001). Four exceptions to this rule have been carved out by this Court in instances where: (1) the successor expressly or impliedly agrees to assume the liabilities of the predecessor; (2) the transaction may be considered a de facto merger; (3) the successor may be considered a “mere continuation” of the predecessor; or (4) the transaction was fraudulent. Id.See also Russell v. Sun-America Secs. Inc., 962 F.2d 1169, 1175-76 (5th Cir.1992); Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 174 (5th Cir.1985).

¶ 7. Paradise argues that the exceptions to the general rule do not apply in this case. After a review of the record, we find that exception number three, mere continuation, applies in this case and that Paradise is a mere continuation of Paradise Pools and Spas. It is important to note why exceptions one, two, and four do not apply.

Assumption of Liabilities

¶ 8. Paradise argues that it did not expressly or impliedly agree to assume the liabilities of Paradise Pool and Spas. No evidence exists that Paradise expressly or impliedly assumed the liabilities of its predecessor, Paradise Pools and Spas. Therefore, this exception does not apply.

Defacto Merger

¶ 9. Paradise argues that there was not a de facto merger between Paradise and Paradise Pools and Spas, but an asset purchase. “A de facto merger exists when there is a continuity of management, personnel, assets and operations; a continuity of shareholders; the predecessor dissolves shortly thereafter; and the successor assumes the predecessor’s obligations.” Huff, 786 So.2d at 388. Paradise asserts that it does not fit any of the four elements of de factor merger because (1) there was no continuity of management, personnel, assets and operations; (2) Ken Beard and Ray C. Towles were original shareholders. Later Beard bought out Towles and Beard’s two sons, Kenneth Beard, Jr. and William Timothy Beard, bought into the company, making Beard the only original shareholder; (3) Paradise Pools and Spas did not cease operations, liquidate and dissolve as soon as legally and practically possible; and (4) Paradise did not assume any liabilities; it only purchased the retail operation portion of Paradise Pools and Spas.

¶ 10. We find that the de facto merger exception does not apply in this instance. The companies’ shareholders changed from Beard and Towles to Beard and his two sons and Paradise Pools and Spas filed its last tax returns in 1998, two years after its assets were purchased in 1996.

Fraud

¶ 11. Paradise contends that the transaction of Beard forming two corporations and subsequently transferring the assets of Paradise Pools and Spas was not fraudulent. We find that no evidence exists that the transaction made to acquire the assets of Paradise Pools and Spas was fraudulent. Furthermore, Amerihost does not make any allegations that fraud occurred. Hence, this exception does not apply.

Mere Continuation

¶ 12. Paradise argues that it is not a mere continuation of Paradise Pools and Spas. In Muff, we addressed the mere continuation exception. We considered the traditional rule and the product line theory in the resolution of that case. See Huff, 786 So.2d at 388. The traditional rule states that a corporation is not to be considered a continuation of a predecessor unless, after the transfer of assets, only one corporation remains, and there is an identity of stock, shareholders, and directors between the two corporations. Mozingo, 752 F.2d at 174-75. The product line theory is a deviation from the traditional rule “based largely on the idea that the successor corporation is, like the predecessor, in a position to assume the risk-spreading role assigned to the manufacturer of a product by strict liability theory.” Id. at 175. It is also based upon the idea of estoppel and principles of fairness that a corporation that benefits from the goodwill of a predecessor’s product should also bear the burden of liabilities attached to the product as well. Id.

¶ 13. In considering the traditional rule we find that Paradise Pools and Spas did not dissolve until December 31, 1998. Furthermore, Paradise was incorporated in December 1995 and presently exists. Therefore, two companies continued to exist after the purchase of assets. However, the appearance is that the stock of Paradise Pools and Spas was converted to Paradise and that the management is identical. Beard, one of the original in-corporators of Paradise Pools and Spas, formed Paradise. Paradise bought all of the assets of Paradise Pools and Spas to be held by specific stockholders, Beard and his sons, Kenneth Beard, Jr. and William Timothy Beard. This case fits the traditional rule in some aspects, but in the interest of fairness, other factors should be considered.

¶ 14. Another deviation from the traditional rule is called the “continuity of enterprise” theory where we consider assessing if the successor benefits from the goodwill of a predecessor’s product without sharing the liabilities. This theory considers the traditional factors as well as other factors such as: (1) retention of the same employees; (2) retention of the same supervisory personnel; (3) retention of the same production facilities in the same physical location; (4) production of the same product; (5) retention of the same name; (6) continuity of assets; (7) continuity of general business operations; and (8) whether the successor holds itself out as the continuation of the previous enterprise. Id.

¶ 15. We adopt this theory to deal with cases that concern liability as it relates to debts owed by the predecessor when the successor takes on the identity of the predecessor company in every way except taking responsibility for the predecessor’s debts. Paradise retained the same supervisory personnel. Beard still runs the company. Paradise is located in the same cities, Vicksburg, Mississippi and Jackson, Mississippi, and in the same buildings as Paradise Pools and Spa. Paradise is still in the business of selling pool and spa equipment and services. Paradise still utilizes the name of Paradise Pools and Spas. The name Paradise Pools and Spas remains in the Vicksburg phone book and on the building that Paradise runs it business from. Paradise utilizes the assets of Paradise Pools and Spas to run the same type of business. The business operations of Paradise are the same as Paradise Pools and Spas. Finally, Paradise still holds itself out as Paradise Pools and Spas. In fact, during the litigation concerning Bromanco for payment of its services, Paradise filed its answer and cross-claim in the name of Paradise Pools and Spas. Furthermore, in the proceedings to dismiss the writ of garnishment, Paradise Pools and Spas is named in the caption.

¶ 16. A wealth of evidence exists to prove that Paradise is exploiting the goodwill of Paradise Pools and Spas for the attendant benefits and yet wants to avoid the liabilities. We conclude that Paradise is a mere continuation of Paradise Pools and Spas and would be unjustly enriched if it is allowed to keep the $12,656.46. We also note two additional facts. First, the check that Beard received from the clerk’s office was made out to Paradise Pools and Spas. Beard accepted the check and never complained that the name on the check was incorrect. Second, although Beard claims in his testimony that he used the check to pay the debts to another company that Paradise Pools and Spas owed, the check was actually deposited into Paradise’s AmSouth Bank account that was garnished by Amerihost. Also, the company which allegedly received the money in the amount of the check has yet to be identified by Paradise.

CONCLUSION

¶ 17. For all of the foregoing reasons, the decision of the trial court is affirmed.

¶ 18. AFFIRMED.

PITTMAN,' C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, EASLEY AND CARLSON, JJ., CONCUR.