author: | t GASKINS, J.

text:
    Ora Lee WILLIS, et al., Plaintiffs-Appellants, v. Cassie MANNING and Allstate Insurance Company, Defendants-Appellees.
    No. 37,259-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.
    Anthony J. Bruscato, Monroe, for Appellants.

      Hudson, Potts & Bernstein By: Mark J. Neal, Monroe, for Appellees Jay P. Adams.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   | t GASKINS, J.

This appeal arises from a hit and run auto accident in Ouachita Parish. The plaintiffs, Ora Lee Willis and Pearline Moran, appeal from a trial court judgment that rejected their claims against Cassie Manning and her insurer, Allstate Insurance Company. We affirm.

FACTS

On December 22, 2000, Ms. Willis was driving her 1990 Oldsmobile in the inside eastbound lane of DeSiard Street in Monroe. Her sister, Ms. Moran, was a front seat passenger. As she approached the intersection of DeSiard Street and North 21st Street, Ms. Willis slowed to turn left onto North 21st Street. Just before 10:30 a.m., a white car traveling south on North 21st Street ran a stop sign, collided with the Willis car and sustained damage to its left front. This car drove into the parking lot of the mini-mart on the northeast corner of the intersection. After retrieving some documents from the glove box, getting out of the car, and talking to someone exiting the store, the driver then got back in the car and drove north on North 21st. According to the occupants of the Willis car and an independent witness, Sherman Henry, the driver of the hit and run vehicle was a young black male in his mid to late teens or early twenties. Ms. Moran wrote down the license plate of the car as HPZ 999.

The police determined that the license plate was for a 1988 white Dodge owned by Ms. Manning. Officers were dispatched to the Manning residence on Alabama Street. A white Dodge with damage to the front left was at the house. The police were told that Comalethia Manning, Ms. Manning’s 24 year old granddaughter, was driving the car that morning. \? However, Comalethia emphatically denied being involved in or seeing an accident. The police were also told that the damage to the left front of the Manning car was caused by an accident on November 29, 2000; Ms. Manning produced a copy of a police report on that accident. Officer Jeff Pilcher initially ticketed Comalethia for the accident; however, he withdrew the ticket later that day after he concluded that the damage to the Manning car did not appear to be recent and after Mr. Henry verified that the driver of the hit and run car was male.

In April 2001, Ms. Willis and Ms. Moran filed suit against Ms. Manning and Allstate, alleging that Ms. Manning owned the 1988 Dodge Diplomat that struck them. They alleged that Ms. Manning negligently entrusted her car to an unknown driver who struck them. The sisters asserted that they were injured as a result of the collision and they sought damages. Ms. Manning and her insurer filed a general denial in which they asserted that she owned a Dodge Dynasty, not a Dodge Diplomat, and that it was not involved in the accident. Furthermore, they asserted that Ms. Willis was aware that Ms. Manning’s vehicle was not the one that collided with her car and that her lawsuit was brought in bad faith.

A bench trial was held on May 14, 2002. The plaintiffs’ theory of the case was that Ms. Manning’s 12 year old grandson, De-tarius Hutchinson, was the actual hit and run driver. However, when the boy was produced in court, the plaintiffs agreed that he was not the driver. Plaintiffs’ counsel then questioned Ms. Manning’s relatives about other young men in the [..¡family who might have had access to the car. Comalethia testified that she was driving the car that morning but she was not involved in an accident; However, she admitted driving down DeSiard near 21st Street. Renisha Coleman, one of two cousins who was Christmas shopping with Comalethia that morning, likewise testified that they were not involved in an accident. (The other cousin, Rhonda Coleman, was not served and did not testify.)

In a written opinion, the trial court found credible the testimony of Ms. Manning, Comalethia, and Renisha that Comal-ethia was driving the car. Since the plaintiffs and Mr. Henry described the driver of the hit and run vehicle as a black male, the court concluded that the plaintiffs had not carried their burden of proving that the Manning vehicle was involved in the accident. The court also noted that the presence of the Manning car in the vicinity of the accident explained why Ms. Moran wrote down its license plate number. Judgment dismissing the plaintiffs’ claims was signed on July 16, 2002.,

The plaintiffs filed motions for new trial for reargument only and for submission of a map of Ouachita Parish. The motions were denied.

The plaintiffs appeal.

LAW

The plaintiff who alleges negligence has the burden of proving his case by a preponderance of the evidence. A preponderance of the evidence exists when the direct and circumstantial evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Wood v. Spillers, 37,087 (La.App.2d Cir.4/9/03), 843 So.2d 555.

14An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State Department of Public Safety and Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989).

To reverse the trial court’s factual findings, the appellate court ■ must find from the record that no reasonable factual basis exists for the findings and must determine that the record , establishes the findings as clearly wrong or manifestly erroneous. Stobart, supra.

Under the negligent entrustment theory, the lender of a vehicle is not responsible for the negligence of the borrower, unless he had or should have had knowledge that the borrower was physically or mentally incompetent to drive. Stokes v. Stewart, 1999-0878 (La.App. 1st Cir.12/22/00), 774 So.2d 1215.

DISCUSSION

The evidence demonstrated that the Manning vehicle was involved in a car accident on November 29, 2000, less than a month before the instant collision. Comal-ethia was driving her grandmother’s car when.another car | Kran a red light and they collided in the intersection. The left front and the immediate side area near the left front light were damaged on the Manning car. Insurance photos taken on December 1, 2000, confirm this minor to moderate damage. Aside from tacking the light back in, this damage was not repaired.

According to Officer Pilcher, the ■ car that struck the plaintiffs would have been damaged on the front left quarter side. Photos of the Manning car taken in February 2001 do not show damage to that area. Officer Pilcher, while not an accident reconstruction expert, testified that he had investigated about one accident per day during his 14 years as a police officer. His evaluation of the Manning car was that the damage on it did not match up to the damage on the plaintiffs’ car. Also, he saw no signs of fresh scuff marks or paint transfers that indicated that the Manning car had been in an accident earlier that day. He admitted that he forgot the information about the driver being male. Once' he determined that issuing the ticket to Comalethia was a mistake, he withdrew it.

In support of their claims that the Manning car was the one involved in the accident, the plaintiffs testified that three weeks after the accident, they were driving down Alabama Street and saw the same driver washing the same car at the Manning house. However, Ms. Willis testified that the driver who struck them was wearing a cap that partially obstructed her view of his face. She could not see the face of the young man washing -the car; he was also wearing a cap. She based her identification on her observation that he was wearing the same clothes • as the driver who hit them. Ms. Moran | ^likewise testified that the face of the driver who hit them was only partially visible due to a cap. She too testified that they saw the driver washing the car at a house on Alabama Street; however, she did not know the address of the Manning home.

Ms. Willis also testified that three to four weeks before the trial, she saw the same young man driving the same white car that hit them. However, Ms. Manning’s testimony indicated that she sold her white car at least six weeks before the trial.

Ms. Manning and Ms. Willis agreed that on the afternoon of the accident — after Comalethia was ticketed but before the ticket was withdrawn — Ms. Manning came to Ms. Willis’ house and they went outside to look at the Manning car. Ms. Manning testified that Ms. Willis admitted that her car was not the one involved in the accident. Ms. Willis denied making such a statement.

The plaintiffs also attack the credibility of the members of the Manning family who testified. In particular, they refer to Co-malethia’s initial statement to Officer Pil-cher that she was not in the vicinity of the accident. At trial, she testified that she drove down DeSiard Street between 10:20 and 10:30 a.m. and that she was not involved in an accident nor did she see an accident. Her cousin and passenger Reni-sha likewise testified that they were not involved in an accident and that she did not see an accident either. ■

|7In arguing that the trial court committed manifest error, the plaintiffs rely heavily upon the police logs. However, we note that the testimony of the police officers raised serious questions about the accuracy of the police logs. Consequently, we must conclude that the police logs are of little or no assistance in resolving this matter.

Of the two elderly plaintiffs — at trial in 2002, Ms. Willis was 79 and Ms. Moran was 71 — only Ms. Moran observed the license plate. The trial judge concluded that the proximity of the Manning car near the time of the accident explained the fact that Ms. Moran wrote down its license plate number. Based upon the record before us, we cannot find that this conclusion was manifestly erroneous. Nor can we find manifest error in the trial court’s determination that the Manning women were credible in their testimony that Comalethia was driving her grandmother’s car on the morning of the accident. See Erwin v. State Farm Mutual Automobile Insurance Company, 34,127 (La.App.2d Cir.11/1/00), 771 So.2d 229, writ denied, 2000-3285 (La.2/2/01), 784 So.2d 6.

In conclusion, we find that the plaintiffs failed to carry their burden of proving by a preponderance of the evidence that the Manning car was involved in the accident, much less that it was negligently entrusted to an incompetent driver.

CONCLUSION

The trial court judgment dismissing the plaintiffs’ claims against the defendants is affirmed. Costs are assessed against the plaintiffs/appellants.

AFFIRMED.

      . In the record, this boy is also referred to as "Deterric.”

      . The plaintiffs named him as the driver in the joint pretrial statement.

      . Ms. Manning testified that she sold the car in January 2002; however, a document per-taming to the sale was notarized April 1, 2002.


source: Caselaw Access Project

author: |, STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Laxaverian WHITE, Appellant.
    No. 37,261-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, H. Stephens Winters, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   |, STEWART, J.

The state charged Laxaverian White (“White”) with distribution of cocaine, possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and conspiracy to distribute those Controlled Dangerous Substances (“CDS”). Following a trial on the merits, the jury returned a responsive verdict of guilty to possession of cocaine and attempted possession of marijuana. The court imposed a sentence of three years at hard labor on the cocaine charge and sixty days on the marijuana charge, with the sentences to be served consecutively to each other and to a revoked parole sentence. White has not challenged his conviction for attempted possession of marijuana, nor has he challenged his sentences. However, White does challenge the sufficiency of the evidence of the conviction for possession of cocaine. We find that the evidence supports a finding of constructive possession of cocaine beyond a reasonable doubt. Thus, the convictions and sentences are affirmed.

FACTS

Monroe police detective Mark Johnson (“Johnson”) testified that on April 3, 2002, he obtained a search warrant for a residence at 1508 Dilling Street in Monroe. The warrant specifically named Laxaveri-an White and his brother, Antonio White. Johnson went to the residence with a special response team on April 4, 2002, where they conducted a flash-bang entry. Johnson described several photos taken at the scene, including a picture showing the windows completely blocked out by aluminum foil and eight cell phones and their chargers lined up on a window sill. It is common for drug dealers to use Nextel cell phones equipped with a walkie-talkie 1 ^capability to conduct business. The defendant was next to a table which had a cell phone on it. Also lying on the table next to the defendant were a clear plastic bag containing powder cocaine, a clear plastic bag containing crack cocaine, and an ashtray containing marijuana. Razor blades found in the residence were consistent with paraphernalia used in drug distribution.

Detective Johnson identified several items seized from the scene incident to the arrest of the defendant. First, he identified an envelope addressed to White. It bore numerous figures indicating drug sales, the amounts purchased and sold, the buyers and amounts owed. Next, he identified a razor blade with cocaine residue seized from the top of the TV in the living room five feet from where the defendant was located.

The house where the defendant was arrested appeared to be nothing more than a drug distribution center. It had no beds, but did have blow-up mattresses. In addition, there were no linens or clothes in the closets. A baby crib in the southeast bedroom was used to hold a pile of clothes. However, an officer found crack cocaine in the crib. Also introduced into evidence were: an electric bill addressed to Antonio White at the house number; a set of digital scales found in the living room closet that was consistent with the type used in drug trafficking; and the defendant’s wallet which was found on the table next to the two bags of drugs. The wallet was inches away from the drugs.

' There was a large amount of drugs and drug paraphernalia seized from various places in the home. The following items were recovered: (1) a bag containing thirty-eight $20 rocks of crack, taken from the crib in the ^southeast bedroom; (2) 252 grams of marijuana divided among 22 plastic bags and a half ounce of marijuana both taken from the north bedroom closet; (3) three rocks of cocaine found in a pill bottle in the north bedroom closet; (4) two straws and a razor blade with crack residue recovered from under the living room couch; (5) a used crack pipe found in the southwest bedroom; (6) a shoe box full of stems and seeds trimmed from marijuana leaves, which is consistent with a drug dealer’s activity of making the contraband better for sale. The amount of marijuana and cocaine found in the house was not consistent with personal use.

On cross examination, Detective Johnson admitted that Antonio White rented the residence where this incident occurred. None of the utility bills were in defendant’s name. None of the four bedrooms contained clothing or linens. There was no proof the records of drug transactions on the envelope addressed to the defendant were his handwriting. In fact, Johnson had no idea where defendant was just before the police entered the building.

Nonetheless, Detective Jerry Melton testified that on April 4, 2002, he was present at the execution of the search warrant in this case. He was the first officer through the door. He noted that the defendant was sitting at a card table which had drugs, a wallet, a cell phone and an ashtray on it.

Katrina White, the defendant’s wife, testified that on April 4, 2002 she and White lived at a different address than where he was arrested. She said that he had been with her until 12:20 p.m. on the day of his arrest. She stated that the defendant had never lived at Antonio’s Dilling Street ^residence. Although the envelope which bore the drug transaction numbers bore White’s name and an address at which he and Katrina had lived, 800 South Seventh Street, she had no idea how the envelope got to Antonio’s house.

Following a trial, the defendant was found guilty of possession of cocaine and attempted possession marijuana. This appeal ensued.

DISCUSSION

Sufficiency of Evidence

White argues that the evidence was insufficient to support the conviction for possession of cocaine. He contends that he was merely in the wrong place at the wrong time and that the state failed to prove he was aware cocaine was present.

Although the record does not reflect that the defendant filed a motion for post-verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

To support a conviction for possession of a CDS, the state must prove that the defendant was in possession of the illegal drug and that he knowingly possessed the drug. State v. Matthews, 552 So.2d 590 (La.App. 2d Cir.1989), writ denied, 559 So.2d 137 (La.1990). However, to be guilty of possession of a CDS, one need not actually possess the contraband; constructive possession is sufficient to convict. State v. Matthews, supra; State ex rel. T.E., 2000-1810 (La.App. 4th Cir.4/11/01), 787 So.2d 414. Constructive possession means having an object subject to one’s dominion | Rand control, with knowledge of its presence, even though it is not in one’s physical possession. State v. Perez, 569 So.2d 609 (La.App. 2d Cir. 1990), writ denied, 575 So.2d 365 (La.1991). Factors which may be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession are the defendant’s knowledge that the illegal drugs were present, evidence of recent drug use, the defendant’s proximity to the drugs, and evidence that the area is frequented by drug users. State v. Barthe, 2000-2404 (La.App. 4th Cir.12/27/01), 806 So.2d 53. Another consideration is the defendant’s relationship with the person in actual possession of the drugs. State v. Toney, 99-1574 (La.App. 4th Cir.11/8/00), 796 So.2d 1, writ denied, 2000-3474 (La.11/16/01), 802 So.2d 619.

Mere presence in the area where narcotics are discovered is insufficient to support a finding of possession. However, the fact finder may draw reasonable inferences based upon the evidence presented at trial. State v. Matthews, supra.

The evidence, viewed in the light most favorable to the prosecution, shows that the defendant was in a building, rented by his brother, that was set up as a drug distribution center. The state established that the defendant had dominion and control of the bags of powder cocaine and crack cocaine that were at the card table where he was seated. There was a visible bank of cell phones, some with walkie-talkie capability, on a nearby window sill. The windows were shielded from view from the outside by aluminum foil. An envelope bearing records of drug transactions was on the table in front | Rof the defendant. The envelope bore his name and an address at which he lived. He was five feet from a TV on which was a razor blade with cocaine residue.

The logical inference from all of this is that the defendant knew that CDS were present in the area. The burnt marijuana in the ashtray on the card table was evidence of recent drug use. White cannot reasonably deny knowledge of the two bags of cocaine and the marijuana in the ashtray that were inches from his face. The numbers on his envelope are evidence that he was actively involved in making records of drug transactions. In sum, the evidence shows that the defendant was in constructive possession of the cocaine on the table in front of him.

Thus, we conclude that there was sufficient evidence to convict the defendant on the charge of possession of cocaine and on the charge of attempted possession of marijuana.

CONCLUSION

Because the evidence is sufficient to support the challenged conviction for possession of cocaine, the convictions and sentences are affirmed.

AFFIRMED.


author: _JjMOORE, J.

text:
    Billy R. WILLIAMS, et al., Plaintiff-Appellant, v. TRI-STATE PHYSICAL THERAPY INC., et al., Defendant-Appellee.
    No. 37,262-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Klotz, Simmons & Brainard, by Eron J. Brainard, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, by Charles W. Salley, Gregory S. Barkley, Shreveport, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   _JjMOORE, J.

Billy R. Williams (“Billy”) and his wife, Sharon A. Williams (“Sharon”), appeal the trial court’s granting of Tri-State Physical Therapy, Inc. (“Tri-State”) and Amy Barnes’ (“Amy”) Exception of Liber-ative Prescription on November 4, 2002, which dismissed Billy’s claims with prejudice. We find the trial court was manifestly in error and clearly wrong in sustaining the exception and thus, we reverse the judgment of the trial court and remand for further proceedings.

Factual Background

Billy was involved in a work-related accident on or about June 15, 1997, when he injured his lower back at the L5-S1 lumbar disk while moving the fifth wheel on his tractor-trailer rig. At the time of his injury, Billy was employed as a truck driver for Roadway Express (“Roadway”). He initially presented himself for medical care in Texas where he was working. On June 1, 1997, he sought the medical care of Lewis C. Jones, M.D. of the Orthopaedic Specialist Center (“the Center”) in Shreveport, Louisiana, for his back injury. While receiving medical treatment at the Center, Billy began treatment under the care of Austin Gleason, M.D. (“Gleason”), a partner of Dr. Jones. Gleason prescribed a conservative treatment regimen for Billy including physical therapy and medication for his rehabilitation.

Billy was referred to Tri-State by Gleason for therapy which included a “work hardening” program to assist Billy in getting back to his job. The relationship between Gleason and Tri-State was such that Gleason would border certain physical therapy routines and tests for Billy, and Tri-State in turn would report to Gleason regarding Billy’s therapy performance and test results. Tri-State made no decisions relative to Billy’s therapy regimen and relied solely on the therapy procedure directives of Gleason. During Billy’s therapy program, Roadway required Billy to undergo a Functional Capacity Evaluation (“FCE”) with Tri-State, which was ordered by Gleason to ascertain Billy’s medical standing for returning to work. Billy’s therapy records indicate that as of January 20, 1998, he was successfully lifting 25 pounds, which was required of him to be able to return to work.

On or about January 28, 1998, Gleason noted in a Physical Therapy Team Conference Report (“Report”) to Tri-State, that although Billy had achieved his lifting potential of 48 pounds through therapy and work hardening, Gleason was concerned that the FCE requirement of lifting 100 pounds would expose Billy to an undue risk of re-injuring his back. The FCE was scheduled for February 13, 1998 and was conducted by therapist, co-defendant and co-appellee, Barnes. During the FCE, Billy was required to lift 100 pounds of weight under the supervision of Barnes, and during the lift, Billy experienced severe pain in his lower back. Gleason’s post-February 13, 1998 Progress Report (“report”) notes reflect that Roadway required that Billy successfully lift 100 pounds during the FCE caused Gleason some concern.

Following the FCE, Billy continued treatment with Gleason for his back pain, as well as therapy with Tri-State, as ordered by Gleason. Gleason’s report of June 8, 1998, shows that because Billy was still | ¡¡experiencing pain during therapy treatments he advised Billy that his injury sustained during the FCE on February 13, 1998 had “aggravated his situation and set him back significantly.” Following the February 13, 1998 re-injury, Billy experienced the ebb and flow of progress and set-backs, as are reflected in Gleason’s medical chart, records and reports. For example, Gleason noted on March 19, 1998 that Billy’s February 13, 1998 injury was hopefully a “temporary exacerbation,” while the April 3, 1998 progress report noted that Billy seemed to be recovering from the February 13, 1998 incident. Gleason’s May 1998 report notes indicate that Billy was continuing to improve, although with continued back pain. Gleason’s June reports indicated that while Billy was engaged in work hardening to return to work, the February 13, 1998 incident aggravated Billy’s back condition and set him back significantly.

On June 17, 1998, in a Physical Therapy Team Memo, Gleason removed work hardening from Billy’s regimen due to the back pain Billy was experiencing. Gleason then decided to treat Billy with medication only. On June 29, 1998, Gleason’s report noted that although Billy continued with therapy, his back problem continued to worsen. As a result, Gleason ordered a repeat MRI to check for any lumbar spine changes in Billy’s lower back at the L5-S1 disk level. On July 1, 1998; Gleason noted that the repeat MRI, administered that day, showed that Billy’s degenerated and bulging disk at L5-S1 was “worse” than reflected on the previous, pre-February 1998, MRI. That same day, Gleason showed Billy the MRI results. Gleason then concluded that conservative treatment for Billy had [4failed and recommended surgical intervention. His report noted that Billy was obtaining a second opinion. Gleason’s July 22, 1998 report reflected that a second opinion relative to Billy’s back injury and treatment was provided by Carl Goodman, M.D., who recommended further physical therapy prior to surgery. In January 1999, Billy underwent a surgical fusion and fixation in his lumbar spine at L5-S1. Following thereafter, Billy continued therapy treatment with Tri-State until October 1998 and with Gleason until June 29,1999.

By certified letter from their attorney dated June 7, 1999, Billy filed with the Louisiana Division of Administration (“Division”), a claim for medical malpractice against Tri-State, Gleason, Barnes, the Center, and Liberty Mutual Insurance Company. Billy was advised by certified mail dated July 30,1999 from the Malpractice Insurance Director for the Patient’s Compensation Fund (“PCF”) that TriState was not qualified under the PCF. Later, by certified letter dated September 8, 1999, Billy was notified by the PCF that Barnes was likewise not qualified under the PCF.

On September 17, 1999, Billy instituted suit in the First Judicial District Court against Tri-State and Barnes for the injuries Billy received on February 13, 1998. Tri-State and Barnes filed an Exception of Prescription alleging Billy’s claim was prescribed on its face. The trial court set the exception for hearing on September 30, 2002. At the hearing, the parties entered into the following stipulations:

1. All records and bills associated with the care provided to Billy by Gleason and Tri-State were deemed authentic and admissible into evidence;
|b2. Billy filed a request for a Medical Review Panel on June 7,1999; and
3. Billy received notification from the PCF dated July 30, 1999 that Tri-State was not a qualified health care provider and Billy received notification from the PCF dated, September 8, 1999, that Barnes was not a qualified health care provider under the PCF.

The trial court took the matter under advisement and on October 21, 2002, rendered judgment, without reasons, sustaining the exception and dismissing Billy’s claim with prejudice. This appeal followed.

Discussion

Initially, we note that Billy’s claim is subject to the liberative prescription of one year from the day that injury or damage is sustained, as a delictual action pursuant to La. C.C. art. 3492, as physical therapists are not listed among those health care providers covered under the special periods for prescription set forth in La. R.S. 9:5628, regulating actions for medical malpractice. Under the provisions of La. C.C. art. 3492, if prescription is evident on the face of the pleadings, the burden of proof shifts to the plaintiff to show that the action has not prescribed. See, Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502. Furthermore, when the plaintiffs petition shows on its face that the prescriptive period has run, and the plaintiff relies on a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Holmes v. Lee, 35,021 (La.App.2d Cir.9/28/01), 795 So.2d 1232, 1235, citing, Burdeaux v. Cline, 626 So.2d 1205 (La.App. 2d Cir.1993), writ denied, 93-3132 (La.2/11/94), 634 So.2d 833.

| frBilly urges, in his third assignment of error, that by his filing a request for a Medical Review Panel within one year of Billy’s discovery date of his back re-injury, his claim is timely pursuant to La. R.S. 40:1299.47(A)(2)(a), infra.

In response to this assignment of error, Tri-State and Barnes argue that Billy’s filing of a claim with the Medical Review Panel on June 7, 1999 was not timely as Billy had actual notice of his back re-injury on February 13, 1998 during the FCE, while performing the 100 pound test required by Roadway. Tri-State and Barnes argue specifically that Billy’s complaints for over three months to Gleason and Tri-State regarding back pain following the FCE demonstrates Billy’s full awareness of his re-injury during the FCE. Lastly, Tri-State and Barnes argue that, notwithstanding Billy’s knowledge for the three months following the FCE, Billy’s June 2, 1998 comment to Barnes that “If I just hadn’t lifted that 100 pounds, I’d be doing ok” reflects Billy’s requisite knowledge to commence prescription and thus, Billy’s June 7, 1999 claim filed with the Division had prescribed.

The Reasonable Date of Discovery

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is a victim of a tort. Campo, supra at 510, citing, Percy v. State, Through E.A. Conway Memorial Hosp., 478 So.2d 570 (La.App. 2d Cir. 1985). A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is 17whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription. Campo, supra at 510, 511, citing, Ledet v. Miller, 459 So.2d 202 (La.App. 3d Cir.1984), writ denied, 463 So.2d 603 (La.1985); Bayonne v. Hartford Insurance Co., 353 So.2d 1051 (La.App. 2d Cir.1977); Opelousas General Hospital v. Guillory, 429 So.2d 550 (La.App. 3d Cir.1983). Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the éxercise of reasonable diligence that his problem may have been caused by acts of malpractice. Campo, supra at 511, citing, Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment-related. Campo, supra at 511, citing, Griffin v. Kinberger, 507 So.2d 821 (La.1987). The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, and severity of the symptoms and the nature of the defendant’s conduct. Campo, supra at 511, citing, Griffin, supra at 821.

In the instant proceeding, the trial court heard the peremptory exception of prescription filed by Tri-State and Barnes, at which time the|strial court heard the arguments of the parties and accepted into evidence upon stipulation of the parties, all notes and reports of Gleason and Tri-State relating to Billy’s medical care and physical therapy, respectively, as listed supra. Without written reasons, the trial court ruled that Billy’s claims had prescribed.

On the record before us, we find, based on Gleason’s reports as discussed supra, and the jurisprudence set forth regarding reasonable notice in Griffin and Campo, supra, and by this court in Kavanaugh v. Long, 29,380 (La.App.2d Cir.8/20/97), 698 So.2d 730, writ denied, 97-2554 (La.5/15/98), 719 So.2d 67, reasonable notice of the instant tort occurred on July 1, 1999 when he learned the results of his repeat MRI. Billy’s mere knowledge that he experienced an exaggeration of his original back injury during the FCE and that an undesirable condition developed during his physical therapy treatment and prior to his knowledge of the repeat MRI, fails to equate to knowledge sufficient to place Billy on inquiry that a non-work related or non-treatment related subsequent tort may have arisen against TriState and Barnes sufficient to commence prescription.' See, Campo, supra at 512, 513. Moreover, before, during and after the FCE, Billy was under the strict medical care of Gleason, who engaged Tri-State for Billy’s conservative treatment. As reflected in Gleason’s reports of February, March, April, May, and June, 1998 discussed supra, even Gleason was unsure about the effects of the FCE 100 pound lift on Billy, by |8his noting that the FCE incident was a temporary setback and temporary exacerbation of Billy’s underlying work-related back injury to his L5-S1 disk. Not until physical therapy appeared to fail in June, 1998, did Gleason order a repeat MRI on July 1, 1999 which led Gleason to the knowledge that the FCE lift test caused additional degenerative damage and Billy’s bulging disk at L5-S1 was in a worse condition than shown by Billy’s last post-injury MRI of August 1997. There is no evidence in the record or produced by Tri-State or Barnes which suggests that Billy was ever “pain-free” from his underlying work-related back injury prior to the employer-required FCE on February 13, 1998. In fact, Gleason’s reports indicate that Billy’s maximum lift ability during work hardening with TriState never exceeded 40 pounds and that Billy’s pain level fluctuated during his physical therapy treatments pre and post FCE. In light of the weekly medical treatment regimen between Gleason and Billy, especially following the FCE, we do not find Billy acted unreasonably in failing to recognize that his degenerative disk condition at L5-S1 may have been in a worse condition than before the FCE. Not until the results of the repeat MRI were disclosed to . Gleason and Billy was Billy able to acquire the requisite knowledge beyond a mere apprehension that his ongoing back problems were significant and directly related to the FCE, as opposed to being related to his underlying back injury or the physical therapy thereof. To find otherwise would place an undue burden on Billy to have self-diagnosed the cause of his ongoing lower back pain and problems prior to Gleason ordering a repeat MRI on July 1, 1998, which definitively connected Billy’s ongoing |inback pain to the FCE. See, Campo at 512, 513. Furthermore, we find that since Billy was under the ongoing medical care of Gleason and was relying on Gleason for the diagnosis of his continuing back problems, constructive knowledge of the cause of the instant injury by Billy was factually impossible, which falls under the fourth situation in which contra non valen-tem applies as set forth by this court in Stett v. Greve, 35,140 (La.App.2d Cir.2/27/02), 810 So.2d 1203. Thus, we find the reasonable date of discovery of the actionable event to be July 1, 1998, which commenced the tolling of prescription under La. C.C. art. 3492.

Billy’s Notice to the Division

Billy urges that the filing of the notice with the Division dated June 7,1999, which the record indicates was received as certified mail by the Division on June 9, 1999, was within one year of Billy’s July 1, 1998, notice of the repeat MRI results, which served to suspend the prescriptive period.

La. R.S. 40:1299.41, provides in relevant part:

A. As used in this part:
(1) “Health care provider” means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed by this state to provide health care or professional services as a ... physical therapist .
* * *
D. A health care provider who fails to qualify under this Part is not covered by the provisions of the Part and is subject to liability under the law without regard to the provisions of this Part. If a health care provider does not so qualify, the patient’s remedy will not be affected by the terms and provisions of this Part, except as | ^ hereinafter provided with respect to the suspension and the running of prescription of actions against a health care provider who has not qualified under this part when a claim has been filed against a health care provider for review under this Part.
* * *

(Our emphasis)

As was the case in Holmes, supra, when this court found that pharmacists were listed as health care providers under and subject to the Medical Malpractice Act, we likewise find that physical therapists are subject to the Medical Malpractice Act. Accordingly, Billy was required to follow the formalities of the Medical Malpractice Act before filing suit in the First Judicial District Court. See, Holmes, supra, at 1235, 1236, citing, LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226.

La. R.S. 40:1299.47 provides in relevant part:

A. (1) All malpractice claims against health care providers covered under this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a Medical Review Panel established as hereinafter provided for in this Section.
(2)(a) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the Medical Review Panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who is not qualified under this Part, until sixty days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part.

(Our emphasis)

|1gThe record reflects that the PCF notified Billy by letter dated July 30, 1999 that Tri-State was not covered under the PCF; there exists no proof in the record as to Billy’s receipt of this letter. Additionally, the record reflects that the PCF notified Billy by letter dated September 8, 1999, that Barnes was not covered under the PCF; again, there is no proof in the record as to Billy’s receipt of this letter either.

Billy filed suit in the district court on September 17, 1999, well less than 60 days after his receipt (or even the cover dates) of the Division letters stating that Tri-State and Barnes were not qualified health care providers. According to La. R.S. 40:1299.47(A)(2)(a), Billy’s prescriptive period for instituting suit against TriState was, at a minimum, October 30, 1999 and December 8, 1999 for bringing suit against Barnes. Accordingly, we find the trial court was manifestly in error and clearly wrong in sustaining Tri-State’s and Barnes’ exception of prescription and we remand to the trial court for further proceedings.

We also note that Billy has presented for our review, to-wit: whether or not the trial court erred by failing to find that contra non valentum applied to suspend prescription due to a “special relationship” existing between Billy and Tri-State. In light of our reversal of the trial court’s ruling and our remand for further proceedings by finding Billy’s claims were timely filed, we pretermit any consideration as to whether a “special relationship” existed between Billy and Tri-State.

11SConclusion

For the foregoing reasons, the judgment of the trial court is REVERSED at the cost of Tri-State and Barnes and REMANDED to the trial court for further proceedings.

REVERSED AND REMANDED

      . We are omitting Sharon from discussion in this opinion; however, we note she is a party plaintiff and a co-appellant, yet she is not a subject of our review herein.

      . We note that Billy and Sharon’s petition failed to contain any allegation of interruption or suspension based on their filing of a claim with the Division for a Medical Review Panel review pursuant to La. R.S. 40:1299.47(A)(2)(a).


author: L CARAWAY, J.

text:
    Willie B. MOORE, Plaintiff-Appellant, v. EDEN GARDENS NURSING CENTER, Defendant-Appellee.
    No. 37,362-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      James D. Caldwell, Tallulah, for Appellant.
    Cook, Yancey, King & Galloway, by: Sidney E. Cook, Jr., Shreveport, for Ap-pellee R.D. Evans, Jr.
    Before STEWART, CARAWAY and MOORE, JJ.
   L CARAWAY, J.

Following an abandonment ruling by the trial court, plaintiff appeals the dismissal of her suit for damages, claiming that the defendant’s correspondence requesting a response to prior discovery constituted a “step” in the litigation proceedings. Finding that no step or waiver occurred, we affirm.

Facts and Procedural History

On March 18, 1998, Willie Moore instituted suit against Eden Gardens Nursing Center for damages she allegedly sustained due to numerous falls while a resident at the facility. Eden Gardens answered the suit on April 15, 1998. Formal discovery requests were filed by Eden Gardens on May 27, 1998, interrogatories were propounded to Moore in April, 1999, and a physician’s deposition was taken on May 26,1999.

On June 7, 2002, Eden Gardens moved for dismissal on grounds of abandonment under La. C.C.P. art. 561, claiming that the deposition was the last step in the prosecution or defense of the matter. An ex parte order dismissing the action was signed by the trial court. On July 9, 2002, Moore filed a rule to vacate the order of dismissal. Her position rested upon an August 12, 1999 letter from defendant’s counsel demanding responses to the interrogatories and threatening a motion to compel.

After receiving Moore’s evidence and argument, the trial court denied Moore’s rule to vacate. On appeal, Moore concedes that the last formal action of record occurred in excess of the three-year abandonment | ¡.period. Nevertheless, she contends that the August 12,1999 letter from defense counsel to her lawyer “evinces an intent by the defendant to proceed with the case and demonstrated to the plaintiff that it had no intention of asserting abandonment.”

Discussion

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. La. C.C.P. art. 561(A). As a general rule, formal action “before the court and on the record” is necessary for a “step” in the prosecution. Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983). However, there are exceptions to the general rule which allow for consideration of extrinsic evidence outside the suit record. La. C.C.P. art. 561(A)(2) authorizes the trial court to enter a formal order of dismissal on ex parte motion which provides that no step in the prosecution or defense of the action has been taken for a period of three years. Such an ex parte dismissal may be rescinded by opposition rule upon proof by extrinsic evidence of a permissible cause outside the record that prevented accrual of the required abandonment period.

Louisiana courts construe abandonment statutes liberally, in favor of maintaining a plaintiffs suit. An action should be dismissed for abandonment only when a plaintiffs inaction has clearly demonstrated his intent to abandon the action. State, DOTD v. Cole Oil and Tire Co., 36,122 (La.App.2d Cir.7/17/02), 822 So.2d 229, writ denied, 02-2325 (La.11/15/02), 829 So.2d 436.

IsThe present dispute centers on an off-the-record action by the defendant involving its August 12, 1999 letter. The statutory and jurisprudential rules allowing evidence outside the suit record to establish discovery actions or a defendant’s waiver will therefore determine whether abandonment occurred. Clark v. State Farm Mut. Aut. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779.

The Code of Civil Procedure provides that certain discovery, including interrogatories, answers thereto, requests for production or inspection and requests for admission and the responses thereto, and the taking of a deposition, with or without formal notice, qualify as steps in the prosecution of the action whether or not filed in the record. La. C.C.P. arts. 1474 and 1446(D). These provisions allow the use of extrinsic evidence of off-the-record discovery to establish a step in the proceeding which interrupts the abandonment period. La. C.C.P. art. 561(B); Mosley v. Missouri Pacific Railroad Co., 36,-907 (La.App.2d Cir.3/5/03), 839 So.2d 1218.

Concerning actions involving the defendant’s waiver, Chevron, supra, recognized that a defendant could waive abandonment by filing a motion for summary judgment after the five-year period had accrued but before the defendant moved for dismissal on abandonment grounds under La. C.C.P. art. 561. It is the qualitative effect of the steps taken by defendant which must be considered in a case-to-case approach to determine whether the defendant has waived abandonment. Gallagher v. Cook, 34,158 (La.App.2d Cir.12/15/00), 775 So.2d 79; Middleton v. Middleton, 526 So.2d 859 (La.App. 2d Cir.1988). Steps which have facilitated judicial resolution of the dispute on the merits and which could be construed as an expression of defendant’s willingness or consent to achieve judicial resolution of the dispute are legally operative to preclude him from raising the claim of abandonment. Id. The defendant’s actions amounting to waiver of the right to plead abandonment may occur before or after the abandonment period elapses. Clark, supra.

Moore relies on this court’s recent case of Cole Oil, supra, in support of her position. The case involved expropriation proceedings filed by the DOTD. Discovery activity between the parties transpired until March 3, 1998, and a judgment of dismissal was entered three years later in March, 2001. Cole Oil sought to overturn the abandonment ruling, urging that the parties had continued discovery. Specifically, Cole Oil showed that during the three-year period, the DOTD notified Cole Oil that it had obtained a new appraiser and requested access to inspect the disputed property for the appraisal. Such actions, although informal, amounted to a discovery response and a discovery request by the defendant. This court, therefore, recognized the defendant as actively involved and participating by agreement with the plaintiff to move the case forward.

We find Moore’s reliance upon Cole Oil in support of her position misplaced. Eden Garden’s letter was not a new discovery action, falling within La. C.C.P. arts. 1474 and 1446. The letter was a follow up to its previous discovery action, to which Moore had not responded. As such, the letter was an action notifying Moore of her inaction in the case. The letter | Rthus implicitly evoked the purpose of the abandonment statute, “that suits, once filed, should not indefinitely linger....” Clark, supra. Eden Garden’s action, therefore, represented neither a specific discovery action which is recognized as a “step” preventing abandonment nor a waiver of the abandonment period which had begun to run because of Moore’s inaction. See, Naccari v. Namer, 01-2410 (La.App. 4th Cir.2/6/02), 809 So.2d 1157 and Parson v. Daigle, 96-2569 (La.App. 1st Cir.12/29/97), 708 So.2d 746, 748.

For these reasons, we affirm the judgment dismissing the action on the grounds of abandonment. Costs of this appeal are assessed to Moore.

AFFIRMED.

      . No party has been substituted as plaintiff despite Moore’s apparent death on February 17, 1999.


author: | PEATROSS, J.

text:
    Johnny Mac BOND, Plaintiff-Appellant, v. Alton Ray BOND, Defendant-Appellee.
    No. 37,264-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.
    Rehearing Denied Aug. 14, 2003.

      Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Teresa C. Carroll, Jones-boro, for Appellant.
    Johnson & Placke, Attorneys, by Kenneth Harper, West Monroe, for Appellee.
    Before GASKINS, CARAWAY & PEATROSS, JJ.
   | PEATROSS, J.

This is an appeal from a judgment of the trial court sustaining an Exception of Res Judicata filed by Defendant, Alton Ray Bond (“Alton”). The only issue is whether the trial court erred in sustaining the exception. Finding no error, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

This is a dispute among brothers over the cutting of timber on land that was owned by the brothers. Johnny Mac Bond and Herman C. Bond each owned an undivided one-fifth interest in the subject land and Alton Ray Bond owned an undivided three-fifth interest in the land. Alton cut timber on the land without Johnny’s and Herman’s permission; and, on September 16, 1999, Johnny and Herman filed suit in Jackson Parish against Alton (docket # 27,420, hereinafter “the first suit”) alleging that Alton acted in “extreme bad faith” in cutting the timber without permission and had refused to account for the proceeds of the sale. The petition prayed for treble damages for the bad faith cutting of the timber and attorney fees. That case went to trial and evidence was adduced regarding the cutting and sale of the timber. Finding that Alton had cut the timber without permission of Johnny and Herman, the trial court awarded Herman three times one-fifth of the total receipts of the timber cut with no set-off. As to Johnny, the trial court held that, although the timber was cut without his permission, his claim had prescribed because he admitted that he knew about the cutting of pthe timber more than one year prior to filing suit. Johnny did not appeal the judgment.

Subsequently, on April 17, 2001, Johnny filed the instant suit seeking an accounting and his one-fifth interest in the proceeds from the sale of the timber. Alton filed an Exception of Res Judicata based on the judgment in the first suit and it was sustained. On appeal, a panel of this court reversed and remanded the matter because there were no pleadings, judgment or any part of the record from the first suit (the suit on which the Exception of Res Judicata was based) filed into evidence in support of the exception from which the trial court (or this court) could determine the issue of res judicata. See Bond v. Bond, 35,971 (La.App.2d Cir.4/3/02), 813 So.2d 1148. On remand, the suit record in the first suit was introduced into evidence and Alton filed a second Exception of Res Judicata which was again sustained by the trial court. This appeal ensued.

DISCUSSION

There is no dispute in this case that both suits involved the same parties, but Johnny argues that the issue he now seeks to litigate was not addressed or litigated in the first suit. He submits, therefore, that the Exception of Res Judicata should have been denied. We disagree.

The party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. Harris v. Caddo Parish School Board, 36,591 (La.App.2d Cir.12/11/02), 833 So.2d 1084. La. R.S. 13:4231 provides as follows:

|s§ 4231. Res judicata
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transactión or occurrence that is the subject matter of the litigation are extinguished and merged in' the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

In Tate v. Prewitt, 33,895 (La.App.2d Cir.9/27/00), 769 So.2d 800, writ denied, 00-3203 (La.1/26/01), 781 So.2d 1265, we noted that our state’s original doctrine of res judicata was based on a presumption of correctness rather than an extinguishment of a cause of action. Under the above statute, as amended in 1991, however, a second action would be barred because it arises out of the occurrence which was the subject matter of the prior litigation. The comments to La. R.S. 13:4231 describe the central inquiry under the statute as not whether the second action is based on the same cause or cause of action, but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. See comment (a) to La. R.S. 13:4231; Harris, supra, citing Davis v. Home Depot, 96-850 (La.App. 5th Cir.2/25/97), 690 So.2d 208, writ denied, 97-0728 (La.5/1/97), 693 So.2d 740. The comments go on to explain:

_JjThis serves the purpose of judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction or occurrence. This prevents needless relitigation of the underlying facts and will free the defendant from vexatious litigation; and, by focusing on the transaction or occurrence which would be comparatively easy to determine, this proposal avoids the much more difficult problem of defining what constitutes “cause of action” is avoided. For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.

In the recent opinion in Ken Lawler Builders, Inc. v. Delaney, 36,865 (La.App.2d Cir.3/5/03), 840 So.2d 672, we discussed this principle and its purpose:

After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. This promotes judicial efficiency and final resolution of disputes. Implicit in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so.
Once a final judgment acquires the authority of the thing adjudged, no court has jurisdiction to change the judgment.
Identification of issues actually litigated for purposes of determining whether res judicata bars an issue shall be determined not solely from the pleadings but also by examining the entire record in the first suit. (Internal citations omitted.)

In the case sub judice, Johnny characterizes his claim that was deemed prescribed in the first suit as one for treble damages only; and, he asserts that, once that claim was held prescribed, his personal claim for an accounting of the proceeds of the timber harvest arose and that this claim was timely filed in the current suit. As previously stated, Johnny argues that his claim for an accounting of his one-fifth interest in the proceeds of the sale of the timber was not actually litigated in the first suit and did notj^provide the basis for the judgment in the first suit and is, therefore, not barred by res judicata.

While he did not file a brief in. the instant appeal, Alton argued to the trial court that there were allegations in the petition in the first suit that sought an accounting of the proceeds of the timber harvest in addition to allegations concerning tortious cutting of timber and the request for treble damages. Paragraphs eight and nine of the petition in the first suit state:

8.
That defendant has not paid petitioners their portion of the funds received nor has he even offered to pay petitioners their portion of the funds received.
9.
That defendant has failed and refused to account for said funds.

Based on these allegations, it is Alton’s position that any challenge to the trial court’s ruling on that petition should have been raised as an appeal in the first suit and not by the filing of a second suit.

After reviewing the record, which now contains the record in the first suit, we conclude that the allegations contained in and the issues raised by the petitions of both suits arise out of the same transaction and occurrence, i.e., the unauthorized timber harvest by Alton. A party “shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” La. C.C.P. art. 425(A). In this regard, we find that the above-quoted allegations from the petition in the first suit do reflect Johnny’s intention to obtain an accounting of the proceeds of the ^timber harvest and, further, treble damages for the bad faith cutting of the timber.

Johnny emphasizes, however, that the reasons for judgment state that “[m]ore than a year has passed since [Johnny] had full knowledge of the tortious act,” and that neither the reasons for judgment nor the judgment make reference to the claim for an accounting. Even so, all issues related to the cutting and sale of the timber, including a claim for an accounting, were extinguished with the rendition of the judgment and the judgment bars a second action arising out of the cutting and sale of the timber. A demand not granted in the judgment is deemed rejected and the silence of a judgment on any. part of a demand that might have been allowed under the pleadings is a rejection of such part of the demand, which tacit rejection has the force and effect of res judicata. Ken Lawler Builders Inc., supra, citing Edenborn v. Blacksher, 148 La. 296, 86 So. 817 (1920). Johnny’s proper vehicle to pursue his claim for an accounting, therefore, was an appeal of the judgment in the first suit and not the filing of a second suit.

Johnny cites several cases which explain that, when a second suit involves a separate and distinct claim or remedy from those already litigated in a prior suit, res judicata is not applicable. See Graves v. Fields, 35,411 (La.App.2d Cir.12/19/01), 803 So.2d 392, writ denied, 02-0195 (La.4/12/02), 813 So.2d 405; Harris, supra; Tate, supra. We do not dispute the principle for which these cases stand, but our review of the record in the case sub judice reveals nothing to suggest that Johnny’s claim for an accounting of his one-fifth interest in the proceeds of the sale of the timber |7is in some way separate and distinct from the earlier claims set forth in the petition in the first suit. See Harris, supra.

Johnny further asserts that an accounting of the proceeds of the sale of the timber was not essential to the judgment in the first suit; and, therefore, a claim for such accounting is not barred by res judi-cata. See La. R.S. 13:4231(3). To the contrary, an accounting of the proceeds was necessary in order for the- trial court to fashion an award in favor of Herman in the amount of three times Herman’s interest in the proceeds. Even though the award was in favor of Johnny’s co-plaintiff, it reveals that the necessary accounting was made to the trial court in the first suit. In sum, the disputed transaction or occurrence was fully before the court and litigated in the first suit. The trial court, therefore, properly sustained the Exception of Res Judicata in the current suit.

CONCLUSION

For the reasons stated herein, the judgment of the trial court is affirmed at Johnny Mac Bond’s cost.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, PEATROSS, and DREW, JJ.

Rehearing denied.

      . La. C.C. art. 798 provides that co-owners of property share the fruits and products of the property in proportion to their ownership and are entitled to their shares of the fruits or products of the property after deduction of the costs of production.


author: hBROWN, C.J.

text:
    Lucille MACK, Plaintiff-Appellant, v. CERRO COPPER TUBE and CONSTITUTION STATE SERVICES CO., Defendants-Appellees.
    No. 37,319-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.
    Rehearing Denied Aug. 14, 2003.

      Lucille Mack In Proper Person.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P. by Robert A. Dunkelman, Shreveport, for Defendants-Appellees.
    Before BROWN, WILLIAMS, and PEATROSS, JJ.
   hBROWN, C.J.

Claimant, Lucille Young Mack, appeals a judgment rejecting her demand for workers’ compensation benefits. For the reasons expressed, we affirm.

Facts

Mrs. Mack began employment with Cer-ro Copper Tube & Constitution State Services Company (“Cerro”) in November of 1983. Her job included fastening and in-fixing insulation into copper tubing on the assembly line; this job was recognized as a “rabbit operator” position. At some unspecified time, she moved to an “insert-er/packer” position. On April 15, 1999, Mrs. Mack was diagnosed with Carpal Tunnel Syndrome (“CTS”) in both hands. Cerro began paying workers’ compensation benefits to Mrs. Mack shortly after this diagnosis. On September 24, 1999, Mrs. Mack underwent CTS release surgery on her left hand; on October 27, 1999, she underwent the same surgery on her right hand. Dr. William Webb, an orthopedic surgeon, performed both of these surgical procedures. Post-surgical diagnostic studies revealed improvement to her right hand, but there has been no improvement in her left hand.

Dr. Webb opined that Mrs. Mack could return to work full time in January 2000, with no restrictions. She first returned to work on January 9, 2000, but four days later sought medical attention from Dr. Webb complaining of pain in her arms. Although he did not find any abnormalities in his clinical evaluation, Dr. Webb ordered another ^diagnostic study. This study confirmed that the CTS had improved in her right hand but not in her left hand.

On January 19, 2000, Mrs.'Mack sought a second opinion from Dr. Michael Acurio, another orthopedic surgeon. At trial, Mrs. Mack testified that she went to see Dr. Acurio for a second opinion after Dr. Webb had cleared her to return to work without restrictions. Dr. Acurio treated her for a few months and ultimately concluded that she had reached maximum medical improvement. During this time, Mrs. Mack continued to see Dr. Webb, who prescribed occupational therapy.

After undergoing occupational therapy, Mrs. Mack’s therapist, Paul Procell, and Dr. Webb agreed that she could return to work with restrictions; these restrictions limited frequent grasping or pulling as well as lifting or carrying anything over 20 pounds. Mrs. Mack returned to work for a second time on May 25, 2000, with the above referenced restrictions and on light-duty. She worked only four hours and was sent home the same day.

At this point, Cerro retained Alice Rogers-Bond, a licensed vocational rehabilitation consultant. After evaluating different positions at Cerro, Ms. Bond believed that the inserter/packer position fell within the work restrictions prescribed by Mrs. Mack’s physician. An inserter/packer places (already) rolled-up coil tubes of liquid and suction lines into boxes on the assembly line. Ms. Bond prepared a videotape of this particular job and on September 13, 2000, met with Mrs. Mack and Dr. Webb. After reviewing the videotape, Dr. Webb agreed that Mrs. Mack was capable of performing this job, but recommended that she work only a half day for the 1 ¡¿first two weeks. Dr. Acurio also reviewed the video and concurred that Mrs. Mack could return to work in this position.

On October 5, 2000, Cerro offered Mrs. Mack the position of inserter/packer and she agreed to the proposed job. Her third and final attempt to return to work took place on October 12, 2000. She only stayed at work for an hour and a half that day. The next day, she saw Dr. Webb and complained that the work caused substantial pain. Although finding no objective physical changes, he accepted Mrs. Mack’s statements and agreed that she was unable to work at Cerro in any capacity. On December 14, 2000, Cerro offered her the position again, specifying that her salary would be what she was earning prior to her occupational disease, $11.34 per hour.

Ultimately, Cerro discontinued paying workers’ compensation benefits to Mrs. Mack on January 2, 2001. On February 13, 2001, she filed the instant disputed workers’ compensation claim because her benefits had been terminated. Mrs. Mack sought indemnity benefits from January 2, 2001, as well as penalties and attorney fees.

On January 10, 2002, the Workers’ Compensation Judge (“WCJ”) appointed Dr. Edwin Simonton, an orthopedic surgeon, to perform an Independent Medical Examination (“IME”). He found that Mrs. Mack had fully recovered from her operations and was capable of returning to work. Dr. Simonton also reviewed the video of the inserter/packer position and found it suitable for Mrs. Mack.

| ¿Trial of this matter was held on August 30, 2002. Claimant represented herself throughout the proceedings. The WCJ denied Mrs. Mack’s claim for benefits, penalties, and attorney fees on October 18, 2002. It is from this judgment that she has appealed.

Discussion

The sole issue before this court is whether the WCJ was manifestly erroneous in finding that claimant failed to prove by clear and convincing evidence that she was unable to do the job offered by Cerro.

Standard of Review

The findings of the WCJ will be affirmed unless the judgment is manifestly erroneous. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. When the judgment is based on a credibility call, great deference must be given to the WCJ’s findings. A credibility call may be reversed only when documents or objective evidence so contradict the story of the witness, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit it. In the absence of such a showing, the WCJ’s choice between two permissible views of the evidence will not be disturbed. Rosell v. ESCO, 549 So.2d 840 (La.1989); Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.03/04/98), 708 So.2d 375; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551; Jones v. Ruskin Mfg., 36,548 (La.App.2d Cir.12/11/02), 834 So.2d 1126; Cox v. Roofing Supply, Inc., 36,275 (La.App.2d Cir.08/14/02), 825 So.2d 1271.

Temporary Total Disability Benefits

Compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence her inability to engage in any employment or self-employment. La. R.S. 23:1221(1)(a). McNeal v. Massman Construction, Co., 98-1792 (La.App.3d Cir.05/05/99), 738 So.2d 602, writ denied, 99-2157 (La.11/05/99), 750 So.2d 974.

In this case, Mrs. Mack has failed to establish that she was physically incapable of performing any employment. The medical evidence indicates her ability to work with restrictions. The WCJ was not manifestly wrong.

Supplemental Earnings Benefits

Supplemental Earnings Benefits (“SEB”) are defined in La. R.S. 23:1221(3)(a). The purpose of SEB is to compensate the injured employee for the wage earning capacity she has lost as a result of her injury. An employee is entitled to receive supplemental earnings benefits if she has sustained a work-related injury that results in her inability to earn 90% or more of her average pre-injury wage. The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. La. R.S. 23:1221(3)(a); Banks, supra; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993).

|fiWhen an employee is offered and declines a job that she is physically able to do, the employee may still recover supplemental earnings benefits if she can prove by clear and convincing evidence that she can not perform the work offered because of substantial pain. La. R.S. 23:1221(3)(c)(ii).

In the instant case, what is disputed is whether Mrs. Mack is unable to return to work at Cerro as an inserter/packer on the assembly line because of substantial pain. Mrs. Mack contends that the video job description, which shows the inserter/packer position, inaccurately portrays the speed of the assembly line; she argues that the assembly line moves at a much swifter pace. Mrs. Mack also claims that the boxes which she would be required to handle are much larger.

We note that Mrs. Mack did not object to this videotape at the time she viewed it with Dr. Webb. Ms. Bond found the video accurately portrayed the inserter/packer job. In fact, there was not a single witness who expressed that the videotape falsely depicted the position, including Mrs. Mack’s own witness, Cien Desselle, who is employed as the quality auditor at Cerro.

Claimant argues that she is incapable of performing the modified position offered by Cerro because she is not “cured” yet. Mrs. Mack argues that she is in great pain and that her extreme pain impedes her ability to go back to work. She urges that Dr. Webb’s final opinion, stating that she could not work, should be followed and accepted by this court.

l7Pr. Webb stated that he based his decision that Mrs. Mack was unable to work at Cerro upon the belief that she had gone to work on October 12, 2000, tried to perform the job, but could not. He testified to the following:

Q: Did she (plaintiff) tell you what she had done during that hour and a half (when she was at work)?
A: No.
Q: Okay. Now, based upon her complaints to you, you changed your opinion from what you had indicated on Webb Number 1 (previous medical opinion and diagnosis) and took her off of work all together?
A: That’s true.
Q: And so I take it that the change of opinion was based solely on her saying that what she had done during that hour and a half had bothered her?
A: Yes.
Q: If her history had been she went to work and did pretty much nothing for an hour and a half and quit after an hour and a half, would that change your opinion?
A: Yes.
Q: How would it have changed your opinion?
A: You know, the reason I made this decision was it was my understanding that she went and she tried to do the job that I had released her to do, and that flared her symptoms right back up, at which point I said, well, there’s nothing else she can do.

In her deposition, Mrs. Mack testified that on that day, Cerro “didn’t let (her) do anything” for that hour and a half because, “[T]he line wasn’t really up when (she) was there” so she “was just standing there.” By contrast, claimant testified at trial that she was indeed performing boxing work and that the assembly line was in fact running.

Is As previously noted, upon conducting the IME, Dr. Simonton believed that Mrs. Mack was able to go back to work. Dr. Acurio agreed that Mrs. Mack was capable of performing the inserter/packer position. We recognize Mrs. Mack’s insistent complaints about pain. However, we note that she testified at trial that she can only drive with her left hand, which, according to all the medical evidence, is the hand that has not improved. The medical testimony of Drs. Simonton and Acurio and of the occupational therapist indicates that she is able to work in the offered position. Dr. Webb’s testimony is equivocal. We cannot say that the WCJ was manifestly wrong in not finding Mrs. Mack’s testimony credible.

In oral argument, Mrs. Mack asserted for the first time that her CTS resulted from working as an inserter/packer. We find this to be at odds with her testimony and history. She was in fact performing an inserter/packer’s job immediately prior to April 15, 1999, the date when she could no longer work. Nonetheless, at trial both parties stipulated that the inserter/packer position was not the same job which caused her CTS. In fact, on five occasions at trial, claimant stated that the insert-er/packer job was not the same job which caused her to incur CTS. As previously observed, Mrs. 19Mack was a rabbit operator at Cerro prior to working as an insert-er/packer. Her job as a rabbit operator entailed inserting insulation into copper tubing on the assembly line. While questioning Mr. Desselle at trial, she argued that “the liquid line (was) too small on both ends to plug.” She indicated that the performance of this job, i.e., her position as rabbit operator, and not that of the insert-er/packer job, caused the CTS.

The WCJ made a credibility call which was reasonable in light of the totality of the evidence, both lay and medical. See Banks, supra; Anthony v. BE & K Construction, 32,729 (La.App.2d Cir.05/10/00), 760 So.2d 608, writ denied, 00-1673 (La.09/15/00), 768 So.2d 1280. The position offered to claimant would have enabled her to earn 90% or more of her pre-injury wage. See La. R.S. 23:1221(3)(a). Accordingly, we defer to the trier-of-fact’s reasonable conclusion that claimant is able to return to work and is not entitled to workers’ compensation benefits.

Conclusion

For the foregoing reasons, the judgment of the WCJ in favor of defendant, Cerro Copper Tube & Constitution State Services Company and against claimant, Lucille Young Mack, is AFFIRMED.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, C.J., WILLIAMS, STEWART, PEATROSS, and DREW, JJ.

Rehearing denied.

      . At this time, her average weekly wage was $519.79 and her weekly compensation rate was $346.53.

      . Mrs. Mack was previously represented by two different law firms. Ultimately, however, both attorneys filed motions to withdraw as her counsel.

      . 1) Mrs. Mack: [T]his is complaints of how I got carpal tunnel which is not on this job that you all just saw. (Referring to the videotaped job description). R., p. 150, lines 5-7.
      2) Mrs. Mack: The relevance is that I got carpal tunnel but I did not get carpal tunnel by doing the job that is depicted on the video. (Emphasis added). I did not get it doing that job. (Video shows the inserter/packer position.) R., p. 150, lines 15-18.
      3) Mrs. Mack: That caused me to have carpal tunnel. That job (inserter/packer position) didn't. The job that I had before (it) did. It got worse on that job.
      The Court: Okay. I believe defense counsel stipulated that that was not — the job on the video is not the job that caused you to get carpal tunnel.
      Mrs. Mack: Yes ma'am. R., p. 151, lines 18-24.
      4) Mrs. Mack: [TJhat’s not the way I got carpal tunnel. (Referring to inserter/packer job again). R., p. 158, In. 17.
      5) Mrs. Mack: The only thing I'm trying to see, Your Honor, only thing I'm trying to do is show you all that that job (inserter/packer position) didn't give me carpal tunnel. R., p. 159, lines 7-9.
      It was an earlier job that could have been helped by the company. R., p. 159, lines 13-14.


author: hPEATROSS, J.

text:
    Judy A. Sanderson REESE, Plaintiff-Appellant, v. Demeleus Shombray JACKSON, d/b/a Jackson Financial Group, et al, Defendant-Appellees.
    No. 37,268-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      M. Randall Donald, Monroe, for Appellant.
    Davenport, Files & Kelly, L.L.P., by Lara A. Lane, Thomas W. Davenport, Jr., Monroe, for Appellee, International Fidelity Insurance Company.
    Demeleus Shombray Jackson, In Proper Person.
    Deborah Wilson, In Proper Person.
    Alvin G. Jackson, for Appellee, A-Jack’s Bail Bonds, Inc.
    Jesse Staples Heard, Jr., for Appellee, Real Estate Loan Company.
    Before BROWN, WILLIAMS & PEATROSS, JJ.
   hPEATROSS, J.

This is an appeal from a judgment of dismissal for abandonment in a case involving a petition to rescind and set aside an act of sale for alleged fraud and failure of consideration. For the reasons stated herein, we affirm the trial court’s judgment.

FACTS

Judy A. Sanderson Reese filed suit in February 1999 alleging, inter alia, that a representative of A-Jack’s Bail Bonds, Inc. (“A-Jack’s”), which provided a bond for her husband’s release from jail, had fraudulently obtained her signature on an Act of Sale selling her home to the bonding company for $5,000, and had later obtained a mortgage on the property and subsequently sold the property to a third entity, all without Mrs. Reese’s knowledge. Defendants named in Mrs. Reese’s petition include A-Jack’s; Demeleus Shombray Jackson, d/b/a Jackson Financial Group, the entity that purportedly bought Mrs. Reese’s home from A-Jack’s; Deborah Wilson, representative of A-Jack’s; International Fidelity Insurance Company, surety for A-Jack’s; and Real Estate Loan Company, the mortgagor that loaned A-Jack’s or Ms. Wilson money on the home. Also in February 1999, Mrs. Reese obtained a preliminary injunction preventing the defendants from recording any further purported transfers of her immovable property, preventing foreclosure or sale of her property and preventing a disturbance of her possession of the property. Two of the defendants filed answers in March 1999 and June 1999, but no other pleadings were filed until defendant, International Fidelity Insurance Company, filed a motion to dismiss for abandonment in August 2002. The trial court entered a formal 1 i>order of dismissal on August 2, 2002, stating that the suit was abandoned. The preliminary injunction appears to have been in effect prior to the order of dismissal.

On November 4, 2002, Mrs. Reese filed a motion to set aside the order of abandonment, asserting that her counsel had not been served with any notice of the judgment of abandonment and that the motion for abandonment was not properly mailed to her counsel until August 18, 2002. On November 6, 2002, Mrs. Reese also filed a notice of appeal, seeking a devolutive appeal from the judgment of abandonment.

Once the appellate record lodged and this court noticed that both a motion to set aside the order of abandonment and a motion for appeal had been filed, Mrs. Reese’s counsel was ordered in January 2003 to indicate whether counsel would pursue or forgo the motion to set aside. The following month, counsel responded that Mrs. Reese would forgo the motion to set aside the order of abandonment; this court responded by recognizing counsel’s decision and ordering the appeal to proceed.

On appeal, Mrs. Reese raises the following issues via four assignments of error (verbatim):

1. Whether the trial court erred in granting the motion to dismissal [sic] for abandonment, when there was outstanding and still in effect a preliminary injunction preventing the defendants from taking any actions adverse to the plaintiff, including preventing them from foreclosing on the property or evicting the plaintiff from the property?
2. Did the trial court err in granting the motion to dismiss for abandonment when the motion was not properly served and plaintiff had no notice of its filing until approximately two weeks after the order was signed? Further |3there is no evidence of record that the order was ever served upon plaintiffs counsel.
3. Did the trial court err in granting the motion to dismiss for abandonment when the preliminary injunction was in place and the allegations of the petition for fraud on the part of the defendants which is imprescriptible [sic]?
4. Did the letters between counsel in May of 2001 act as an action to proceed to trial or an acknowledgment of the action such as to interrupt any claim for abandonment?

DISCUSSION

In her first assignment of error, Mrs. Reese argues that the preliminary injunction in effect prior to dismissal of the suit for abandonment continually acted as a bar against adverse actions of the defendants, especially where the allegations were that the defendants acted fraudulently against Mrs. Reese. In Mrs. Reese’s view, as long as the preliminary injunction was in effect, it acted as a “continual acknowledgment” of the case and prevented any action for abandonment. We disagree.

A preliminary injunction is a procedural device interlocutory in nature and designed to preserve the existing status pending a trial of the issues on the merits of the case. La. C.C.P. art. 3601; Smith v. West Virginia Oil and Gas Co., 373 So.2d 488 (La.1979); Ouachita Parish Police Jury v. American Waste and Pollution Control Co., 606 So.2d 1341 (La.App. 2d Cir.1992), writ denied, 609 So.2d 234 (La. 1992), cert denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 249 (1993). Although the obtaining of a preliminary injunction is a step in an action’s prosecution or defense, once the injunction is in place, other steps then are necessary to move the Llitigation forward; if no such further steps are taken, then the action eventually is abandoned.

In Box v. French Market Corporation, 00-1880 (La.App. 4th Cir.9/5/01), 798 So.2d 184, writ denied, 01-3060 (La.2/1/02), 807 So.2d 849, although a preliminary injunction had been obtained in June 1991, no step subsequently was taken before the trial court dissolved the preliminary injunction in January 2000. In affirming the trial court’s judgment, the appellate court stated that, when the party that obtains a preliminary injunction fails to seek a permanent injunction and no other action is taken in the case for a period of at least three years, the case is deemed abandoned by law. The court cited Adams v. Evans, 556 So.2d 126 (La.App. 5th Cir.1990), where the plaintiff challenged an ex parte order dissolving a preliminary injunction on the grounds that the injunction could only be dissolved after notice and a hearing. In Adams, the court held that, because the plaintiff had failed to seek a permanent injunction or take any other step in the prosecution of his case for five years, the cause of action was abandoned and the ex parte order dissolving the injunction was lawful. As the court in Box, supra, noted, at the time the Adams case was decided, the period required for abandonment was five years, but was shortened in 1997 to three years by legislative amendment to La. C.C.P. art. 561 .

|5We agree with the court in Box, supra, that, when a party who has obtained a preliminary injunction fails to seek a permanent injunction and no other action is taken in the case for a period of at least three years, the case is deemed abandoned. We reject Mrs. Reese’s argument that the preliminary injunction acts as a “continual acknowledgment” of the case and prevents any action for abandonment.

In her second assignment of error, Mrs. Reese argues that the motion for abandonment was not properly served on her counsel because it originally was sent to the wrong address and that the motion was not served upon her until approximately two weeks after the order of dismissal had been signed. She further argues that the order of dismissal for abandonment was never served upon her counsel.

Initially, we note that the abandonment that occurs when parties fail to take any step in the prosecution or defense of an action in the trial court for a period of three years is operative without a formal order. La. C.C.P. art. 561(A). In other words, abandonment takes place by operation of law. Under Article 561, there is no requirement that an ex parte motion for abandonment be served on opposing counsel before the trial court can | (¡validly enter a formal order of dismissal. The formal order of dismissal merely recognizes that which already has occurred through operation of law, and the plaintiff is protected by the 30-day period that article 561 affords to the plaintiff to move to set aside the dismissal.

The apparent lack of service of the order in the instant case prevented the 30-day period from running; thus, Mrs. Reese’s motion to set aside the order was timely, even though filed more than three months after the order of dismissal was signed. Since abandonment occurred by operation of law, however, failure to serve the order of dismissal did not prevent or negate the abandonment. Further, because Mrs. Reese was able to move to set aside the dismissal, even though that motion was later forgone, she suffered no deprivation of rights due to failure of service. Accordingly, we find no merit in Mrs. Reese’s arguments made pursuant to her second assignment of error.

In her third assignment of error, Mrs. Reese argues that, because her action is based upon allegations of fraud, the action is “imprescriptible” and can be reurged and refiled. Thus, she argues that, in the interest of judicial economy, the order granting the dismissal of the case for abandonment should be overturned. We conclude that the question of whether Mrs. Reese’s action can or cannot timely be refiled is irrelevant to the question of whether or not the dismissal for abandonment was proper. Again, abandonment takes place by operation of law and a trial court considering an ex parte motion to dismiss for abandonment is not required to consider whether or not an identical new action would or would not be 17prescribed. Moreover, in reviewing an order of dismissal for abandonment, our review is limited to simply determining whether or not the trial court’s judgment was correct. This assignment is without merit.

Mrs. Reese’s final assignment of error raises the question of whether letters between counsel in May 2001 might defeat abandonment in this case. That question, however, is not properly before this court. The letters do not form part of the record on appeal and our review is limited to the appellate record. Such letters might have been introduced into evidence if Mrs. Reese had pursued her motion to set aside the dismissal. An important function of such a motion is to allow the introduction of matters not evident of record that might bear on the question of abandonment. As previously noted, this court afforded Mrs. Reese the opportunity to pursue her motion to set aside the dismissal in the trial court even though she filed an appeal subsequent to moving to set aside the dismissal. Mrs. Reese’s counsel was directed to either pursue or forgo the motion to set aside and her counsel unambiguously responded that Mrs. Reese would forgo the motion to set aside. Accordingly, this appeal proceeded. Finding no indication in the record before us that any steps were taken in prosecution or defense of this matter for a period of more than three years prior to the dismissal, we conclude that the trial court’s dismissal of Mrs. Reese’s claim on the grounds of abandonment was proper.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at Judy A. Sanderson Reese’s cost.

AFFIRMED.

      . La. C.C.P. art. 561 provides:
      A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
      (a) Which has been opened.
      (b) In which an administrator or executor has been appointed.
      (c) In which a testament has been probated.
      (2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
      B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court.


author: I,GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Cedric Lashun LITTLEBERRY, Appellant.
    No. 37,179-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2003.

      Charles L. Kineade, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   I,GASKINS, J.

The defendant, Cedric Lashun Little-berry, was charged with attempted armed robbery, conspiracy to commit armed robbery, illegal possession of stolen property, and armed robbery arising from two separate offenses. Pursuant to a plea bargain, the defendant pled guilty to attempted armed robbery and armed robbery. In exchange for those pleas, the state dismissed the other two charges and agreed not to charge the defendant as a habitual offender. The trial court imposed a sentence of 25 years at hard labor for the attempted armed robbery and a concurrent sentence of 40 years at hard labor, without benefits, for the completed offense. After the denial of his timely motion for reconsideration, the defendant appeals his sentence as excessive. We affirm.

FACTS

On October 13, 1999, the defendant and a male companion, wearing ski masks, entered a Subway store in West Monroe. The cashier fled to the kitchen and locked the door. The defendant fired a shot from a silver-colored pistol through the door, forced it open and made the cashier, at gunpoint, open the cash box and register. The defendant took about $320. As he left, he threatened to kill the cashier if she notified the police.

On December 11, 1999, again in West Monroe, the defendant confronted an employee of a fast food store as she was making a night bank deposit. He threatened her with a silver-colored handgun and demanded money. The victim drove away, but the defendant fired a shot at her. | a During her escape, the victim’s tires were blown out, apparently when she struck the curb at the bank. She abandoned her car at a supermarket and got a ride to the police station from bystanders. The defendant, who had followed her, tried to enter the victim’s locked car by hitting the window with the butt of his gun. However, the gun handle broke. He then shot out the window of the victim’s car. When the police responded, they apprehended the defendant behind the supermarket. The gun was found on the ground in the area where he was stopped. A computer check revealed it had been stolen.

Shortly thereafter, the police learned that the defendant’s girl friend had been involved in both robberies. She told investigators that she had driven the defendant and his companion to the Subway robbery and picked them up after the crime. She also admitted that she and the defendant had planned the second robbery and that she had acted as the driver of the getaway car. According to her, the defendant used the same gun in both crimes.

LAW

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance- so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641, |a The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982). Our review of the record discloses that it contains a more than adequate factual basis for the sentence imposed.

The second prong used to determine if a defendant’s sentence is excessive is to examine whether the sentence imposed is too severe depending on the circumstances of the case and the background of the defendant. State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

DISCUSSION

Prior to imposing sentence, the trial court considered a PSI report which provided detailed information concerning the defendant who, at the time of sentencing, was 25 years old. His. adult record began at age 17 in 1994 with a conviction for misdemeanor theft, followed by a second misdemeanor theft conviction three months later. In 1995, he was convicted of unauthorized entry into an inhabited dwelling in Jonesboro and was placed on probation. However, this probation was revoked after the Rdefendant’s 1996 conviction for simple burglary, for which he received a four-year hard labor sentence. He was on parole at the time of the present offenses; his parole was subsequently revoked. The trial court noted that the defendant was a third felony offender who had never completed a term of probation or parole successfully.

The trial court then considered the facts of both incidents. The court noted that the victim of the completed robbery had been unable to hold employment since the incident. The defendant laid in wait for the second victim. His actions of firing shots at both victims evidenced a complete lack of regard for human life. He had shown no sign of remorse. The court stated its belief that the defendant was a dangerous person who had been preying on people his entire adult life.

On this record, we do not find constitutional error. The defendant, a third felony offender, obtained a substantial benefit from his plea bargain. Had he been charged as a repeat offender, he would have faced a minimum sentence of 66 years without benefits. The trial court granted extreme leniency by directing that the sentences be served concurrently. The defendant’s criminal history, which includes charges of battery, demonstrates a lack of regard for the property and safety of others. He committed the instant offenses without provocation or justification and has demonstrated a lack of ability to respond positively to rehabilitative efforts.

The sentences imposed are lawful and are half or less of the ranges which were available to the trial court. Under the totality of the circumstances of the case, we find the concurrent sentences imposed are ^neither grossly disproportionate to the severity of the offenses nor are they shocking to our sense of justice. There is no showing of an abuse of the trial court’s discretion in the imposition of these sentences which are not constitutionally excessive.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The trial court’s failure to state that the 25-year sentence will be served without benefits will be corrected automatically by operation of La. R.S. 15:301.1.

      . The bullet fired through the door nearly struck the cashier in the head. In fact, the gunshot was so close that it burned her scalp and hair.