author: | JOAN BERNARD ARMSTRONG, Chief Judge. JjTOBIAS, J.,

text:
    Leroy R. FARVE v. David M. JARROTT, M.D.
    No. 2004-C-1424.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 2004.
    Rehearing Denied Dec. 3, 2004.

      L. Kevin Coleman, Law Office of L. Kevin Coleman, APLC, and Michelle D. Robert, New Orleans, LA, for Plaintiff/Respondent.
    Bruce A. Cranner, Ann Marie LeBlanc, James Waldron, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Intervenor/Relator.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge MAX N. TOBIAS JR.).
   | JOAN BERNARD ARMSTRONG, Chief Judge.

The Louisiana Patient’s Compensation Fund and Oversight Board (PCF) seeks supervisory review of the lower court judgment overruling its exception of prescription.

Dr. David Jarrott performed several surgical procedures on the plaintiffs back, the last one on February 15, 1993. Thereafter, the plaintiff consulted a new physician, who operated on him on July 19, 1994, and, according to Mr. Farve’s petition, “[a]s a result of the comparatively excellent result [he] received from the single surgery performed by [the new physician], [plaintiff] became suspicious of the numerous surgeries performed by ... Dr. Jarrott, and for the first time had notice that malpractice may have been involved.”

On July 19, 1995, the plaintiff filed this medical malpractice suit against Dr. Jar-rott, but withheld service of the petition. On February 19, 1996, the plaintiff filed a request for a medical review panel.

pOn January 30,1997, Dr. Jarrott filed a separate suit seeking judgment declaring the plaintiffs cause of action prescribed. The trial court heard arguments on the issue and deferred its ruling to the merits.

On January 24, 1997, Dr. Jarrott answered the plaintiffs petition.

On August 28, 1997, the medical review panel rendered its opinion.

On September 2, 2000, plaintiff settled with Dr. Jarrott, reserving his right to proceed against the PCF.

On January 31, 2001, the PCF answered the Petition for Approval of Settlement.

On March 29, 2004, the PCF filed an exception of prescription on the basis that under the Medical Malpractice Act (La. R.S. 40:1299.41, et seq.), a premature lawsuit does not interrupt prescription, LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, and, consequently, the plaintiffs request for review panel was untimely pursuant to La. R.S. 9:5628.

On July 20, 2004, the trial court overruled the exception of prescription. This timely application followed.

The PCF argues the trial court erred in overruling the exception because it refused to apply retroactively the ruling in LeBreton v. Rabito, which holds that a Lmedical malpractice suit, filed prior to the request for a medical review panel, does not interrupt prescription on a medical malpractice claim.

In LeBreton within one year of the death of her father, Ms. LeBreton filed a suit in medical malpractice in district court against Drs. Rabito, Breaux, and Krefft. Within one year of her father’s death, Ms. LeBreton also filed a request with the PCF for a medical review panel. The doctors interposed dilatory exceptions of prematurity to the suit; and on July 20, 1993, the trial court granted the exceptions and dismissed the suit without prejudice. The medical review panel issued its opinion on August 12, 1996. On February 3, 1997, approximately five months after the plaintiffs attorney was notified of the panels findings, the plaintiff filed suit for wrongful death. Relying on Hernandez v. Lafayette Bone and Joint Clinic, 467 So.2d 113 (La.App. 3 Cir.1985), the trial court denied the exception of prescription. Ultimately the Louisiana Supreme Court reversed, overruling Hernandez. The Hernandez case had approved the simultaneous application of interruption and suspension of prescription in a medical malpractice setting, but the Supreme Court in LeBreton concluded that the specific statutory provision for suspension in the context of medical malpractice is not complementary to the more general provision on interruption of prescription found in La. C.C. art. 3462. Thus, the LeBreton court found that although the plaintiffs claim was suspended from the date she filed her request for a medical review panel until the expiration of the 90-day suspensive period provided by La. R.S. 40:1299.47(A)(2)(a), her wrongful death action was clearly prescribed by the time she filed suit.

The plaintiffirespondent argues that to grant the exception would result in manifest injustice because the retroactive application of LeBreton would divest 14him of a pre-existing right. In support he cites the circuit courts pre-LeBreton history of determining that a malpractice action commenced without prior submission to a medical review panel does not prevent the filing of suit in district court from interrupting prescription, Dufrene v. Duncan, 371 So.2d 1215 (La.App. 4 Cir.1979); that a health care provider who, like Dr. Jar-rott, fails to file an exception of prematurity in a suit brought in district court waived his right to review of the claim before the medical review panel, Barraza v. Scheppegrell, 525 So.2d 1187 (La.App. 5 Cir. 1988); that a malpractice claim may be brought in district court without filing with the medical review panel if the health care provider, as Dr. Jarrott in this case, fails to contest it through an exception of prematurity, Cracco v. Barras, 517 So.2d 1256 (La.App. 4 Cir.1987); that a health care provider’s exceptions of lack of subject matter jurisdiction and improper venue were properly denied even though the claim was not filed before the medical review panel before suit was filed in district court, Vincent v. Romagosa, 390 So.2d 270 (La.App. 3 Cir.1980); and that the filing of suit in district court interrupted prescription, even though the suit was dismissed on an exception of prematurity due to an arbitration agreement entered into by the parties, Garrity v. Cazayoux, 430 So.2d 1138 (La.App. 1 Cir.1983).

The plaintiff/respondent points out that he initially filed his suit for damages timely, i.e., within one year of the surgery that allegedly alerted him to Dr. Jarrott’s alleged malpractice. Furthermore, he argues that Dr. Jarrott’s action in filing an answer to the suit, instead of an exception of prematurity, precludes the assertion of an exception of prescription. This court disagrees. See Wesco v. Columbia Lakeland Medical Center, 2000-2232 (La.App. 4 Cir. 11/14/01), 801 So.2d 1187. |sThe PCF is a “statutory intervenor” and as such takes the proceedings as it finds them. La. C.C.P. art. 1094; Williams v. Kushner, 449 So.2d 455 (La.1984).

In this case, the plaintiffs request for a medical review panel was not filed until February 19, 1996, more than three years after the last surgery performed by Dr. Jarrott, and more than two years after the surgery which he alleges put him on notice of Dr. Jarrott’s alleged malpractice. Filing a request for a medical review panel after one year from the date of the action has no effect because prescription cannot be suspended after it has run. Geiger v. St. of La. Dept. Health and Hosp., 2001-2206 (La.4/12/02), 815 So.2d 80. Thus, application of the LeBreton rational to the facts of this case requires granting the exception of prescription.

Concerning the retroactive application of LeBreton to this case, in Sherman v. Touro Infirmary Hospital, 2000-1365 (La. App. 4 Cir. 10/30/02), 832 So.2d 334, writ den. 2002-2897 (La.2/7/03), 836 So.2d 102, this Court rejected the argument that Le-Breton changed the law such that retroactive application would divest a party of a constitutionally protected interest, and opined that LeBreton did not make new law but merely interpreted an unchanged statute. Because the decision simply declares what the law means, and has always meant, there is no change in the law and no issue of retroactive application. Furthermore, any question concerning the equities of applying LeBreton is answered by LeBreton itself; the Supreme Court, while overruling Hernandez, supra, applied its decision in LeBreton to the plaintiff therein and dismissed her action with prejudice.

Therefore, we grant the writ, reverse the trial court' ruling and dismiss the suit as prescribed.

WRIT GRANTED; RULING OF TRIAL COURT REVERSED; CASE DISMISSED.

TOBIAS, J., CONCURS AND ASSIGNS REASONS.

JjTOBIAS, J.,

CONCURS AND ASSIGNS REASONS.

I respectfully concur, but write separately because I question the reasoning of Sherman v. Touro Infirmary Hospital, 2000-1365, 2000-1366, 2000-2573, 2000-2574, 2002-1058, 2002-1059 (La.App. 4 Cir. 10/30/02), 832 So.2d 334 and its retroactive application of LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226.

The rationale of Sherman and LeBreton is that a party asserting a claim of medical malpractice must assume that the allegedly malpracticing health care provider is a qualified health care provider under La. R.S. 40:1299.41 et seq. (hereinafter, “the Act”). Before LeBreton, a person had a right to assume that his or her health care provider was not necessarily covered by the Act and could file a suit in the district court that would interrupt prescription. Thereafter, if the health care provider was determined to be a qualified health care provider, the district court suit would be deemed premature and had to be dismissed. The' effect of LeBreton was to change the presumption, which has substantive as well as procedural aspects.

      . The issue of prescription has previously been urged via application for supervisory writ, and a panel of this Court declined to exercise its supervisory jurisdiction to review the trial judge's decision to refer the plea of prescription to the merits. Farve v. Jarrott, 97-C-1505 (La.App. 4 Cir. 8/13/97 unpubl.).

      . La. R.S. 9:5628(A) addresses prescription in actions for medical malpractice, and provides:
      No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
      The prescription is suspended by the filing of a request for a medical review panel. La. R.S. 40:1299.47.


source: Caselaw Access Project

author: JjDREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Larry KING, Jr., Appellant.
    No. 38,983-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.
    Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, District Attorney, Charles L. Brumfield, Assistant District Attorney, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   JjDREW, J.

By a vote of 11-1, a Morehouse Parish jury convicted Larry King, Jr., of armed robbery, as charged. The defendant was sentenced to 25 years at hard labor without benefit of parole, probation, or suspension of sentence. He appeals, alleging only insufficiency of the evidence. We affirm his conviction and sentence in all respects.

FACTS

At trial, the victim, Ray Yarborough, testified that:

• He had returned to his insurance office from a trip to the bank about 1:30 p.m. on October 5, 2001, and was alone at his desk, when a robber came in, pointing a .45 automatic pistol at him.
• The robber demanded money, and Yarbrough gave the intruder approximately $100.00 from his pocket and desk drawer.
• The robber then rummaged through his desk and tried to pull the telephone cord out of the wall.
• Failing to accomplish that, the thief noticed an answering machine in the corner of the room.
• The robber knocked down trays to get over to that area, yanking on the answering machine to disconnect it.
• He advised the robber to leave before customers arrived.
• The robber told him to get on the floor.
• As he complied, Yarborough noticed that the gunman had on “real white tennis shoes.”
• When the robber left, he called the authorities via 911.

Madeleine Prater, testifying through an interpreter because of a hearing impairment, declared that:

• On the day of the robbery, she twice saw the defendant walking “cool like” in her yard around the time of the robbery.
• Even though she asked him to move into the street and out of her yard, he went around her house anyway.
!?,• The second time the man was near her house, he suddenly darted and jumped a ditch because police were chasing him.
• She got a good look at his “pretty face,” noticing that he was wearing a royal blue shirt.
• She later identified the suspect at the police station and in open court.

Another witness, Investigator Ron Lara, later established that Prater’s house was one street over from the insurance office.

Cindy Beach, a mail carrier, testified Yarborough told her he had been robbed and gave her a description of the robber. On her mail route a few minutes later, she saw someone fitting the description getting out of a vehicle in front of Gray’s Barbershop. She indicated that it was the eyes and shoes that made hér think this person was the robber. She alerted the police.

Gerald Boley testified that he was working patrol for the Bastrop Police Department on the day of the crime. He and a trainee, Kirk Brown, were looking for the robber in the vicinity of the crime and were told by the dispatcher to go to Gray’s Barbershop. There they approached King because he matched the physical description of “a black male wearing a dark blue sweatshirt or sweater with blue jeans, very light complected with hazel or green eyes.”

Boley testified that the defendant told him he had been at the barbershop “for a while.” He testified that when the defendant was taken to the insurance agency, Yarborough identified him as the armed robber.

The barbershop owner, Isaac Calvin Gray, testified that the defendant had been in his shop for about five or ten minutes before the police arrived.

IsBarbara Patton, a dispatcher with the Bastrop Police Department, produced and identified the log of incoming and outgoing contacts for October 5, 2001.

Bastrop Police Department Investigator Ron Lara testified that:

• The police log reflected that Yarbor-ough had reported the description of the robber as “black male, six feet tall, blue pullover sweatshirt, blue pants, white shoes, green eyes, short hair.”
• The barbershop where the defendant was picked up was 3/10 of a mile from the insurance office.
• King was taken back to the insurance office, where Yarborough immediately identified him as the armed robber.
• Two wads of money were found in the suspect’s pockets (four twenty-dollar bills, two ten-dollar bills, and a five-dollar bill were together, and another group of bills contained one twenty, seven fives, and twenty ones).
• Yarbrough had told him that he gave the robber one twenty-dollar bill, eight five-dollar bills, and twenty one-dollar bills from the register and two ten-dollar bills from his wallet;
• When asked how much money he thought he had, the defendant’s answer as to amount and origin kept changing.
• King denied being at or near the insurance agency that day, claiming that he was with Terrance Smith during the time of the robbery.
• No weapon was ever recovered.

Brad Fife, a lieutenant with the More-house Parish Sheriffs Department, testified that he had taken fingerprints from the defendant and identified the card with his signature on it.

A police officer for the Bastrop Police Department, Steve Fuller, testified that he had retrieved the telephone and answering machine from the crime scene. He told in detail how he had found a partial print on the |4answering machine and why he had opted to photograph it instead of lifting it.

Brian Shoemaker, a deputy with the Morehouse Parish Sheriffs Office, was tendered as an expert in classification and comparison of fingerprints. The trial judge removed the jury and required the state to present its evidence outside their presence before he would qualify him as an expert. The trial court then gave the state an opportunity to make a better exhibit of the prints. The defense counsel did not object to this procedure. The state brought Fuller back to testify about the new photographs he had taken, showing the latent fingerprint on the answering machine.

After more testimony from Shoemaker, the trial court found that he was an expert in fingerprint identification and that the charts of King’s fingerprints could be used as evidence. The witness then testified at length about the comparison of the defendant’s known prints to the photograph of the partial print taken from the answering machine, finally opining that the prints were a match.

The last witness called by the state was Curtis Stephenson of the Bastrop Police Department, who testified that the minimum number of fingerprint point comparisons established by the FBI was seven.

The defense called Juane Perry as an alibi witness. Perry, who was identified as the defendant’s cousin, testified that he was with the defendant from approximately 12:30 p.m. to 1:30 p.m. on the day of the robbery. During cross-examination, he said he could not recall what the defendant was wearing that day. He denied selling drugs with the defendant that day. 15He denied that Terrance Smith had been with him and the defendant during the time of the robbery.

DISCUSSION

Defendant argues these points:

• The victim misidentified the defendant because the victim by his own admission could not see the robber’s whole face and was unsure which hand the robber used to hold the gun; and
• The deaf witness testified that the intruder ran when he “heard” the police.

The state argues that both the direct and circumstantial evidence show that the defendant was the armed robber. In addition to the victim’s identification of the armed robber, the state presented evidence to show that the defendant’s fingerprint was at the scene of the crime.

La. R.S. 14:64 provides:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation | fiof the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

This court’s authority to review questions of fact in a criminal ease is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, State ex rel. Gilliam v. State, 2002-3090 (La.11/14/03), 858 So.2d 422.

In cases involving a defendant’s claim that he was not the perpetrator of the crime, or where he remains silent, the Jackson rationale requires the State to negate any reasonable possibility of mis-identification in order to carry its burden of proof.

State v. Baker, 28,152 (La.App. 2 Cir. 5/8/96), 674 So.2d 1108, writ denied, 96-1909 (La.12/6/96), 684 So.2d 925.

The defendant argues that he has been misidentified as the armed gunman. His theory is that the victim was not in a position to identify the gunman, since the victim reported that the robber had a bandana over his nose and mouth. However, the jury heard the victim’s testimony and observed him while he was cross-examined about how much of the assailant’s face was uncovered during the robbery. The victim was very 17clear that he had opportunity to study the eyes very closely, stating, “I looked right in his eye, anybody holding a gun on me I’m going to look at their eyes to see what they’re going to do.”

On direct examination, the victim replied “his eyes” when asked if there was anything unusual about the person who walked into his office. The victim also had noted the clothes the gunman wore and found that the gunman’s tennis shoes were unusually white. Further, immediately after the incident, the victim told the postal carrier and law officers that the robber had distinctive green eyes.

When the defendant was brought back to the scene of the crime, the victim immediately and without any hesitation identified King as the armed robber.

This testimony was sufficient for a rational jury to find that the defendant was the man who robbed Yarborough at gunpoint. The jury obviously believed the victim when he said the defendant was that man. The jury also had the opportunity to view the defendant’s eyes and determine if they were so distinctive that they would be easily recognizable.

Even without this positive identification from the victim, the circumstantial evidence is also overwhelming. The defendant was nabbed only 3/10 of a mile from the site of the robbery less than an hour after the crime was committed. The postal worker alerted authorities when she saw King walking into the barbershop. She thought his eyes and shoes fit the description the victim had given her.

|SA woman who lived near the insurance office reported to the police that a man had been in her yard and ran when the police came into the area. This event happened right after the robbery. She identified the defendant in court as the “same face, same body, same person.”

The defendant had two wads of cash on him when apprehended. One of the bundles of money closely matched the amount and denominations of the cash taken from the victim. Taking both bundles of money, the bills match the denominations that the victim stated were taken.

Further, the record shows that a partial fingerprint belonging to the defendant was found at the site. A latent print found on the answering machine was matched to the print of his small finger. This was the same answering machine that the victim identified as the one the robber grabbed in an attempt to disconnect it.

Moreover, the alibi witness’s testimony did not support what the defendant had told the officer regarding where he had been. The defendant presented neither adequate nor convincing evidence to rebut the positive identification by the victim and other witnesses who placed him near the scene of the crime.

The jury found that the defendant was guilty of armed robbery. It is the function of the trier of fact to make such a determination, addressing the believability or weight of the testimony. This record certainly contains more than enough evidence to find that the facts sufficiently support that the defendant was the armed robber and that no misidentifieation took place. Accordingly, we affirm.

b,DECREE

The defendant’s conviction and sentence are AFFIRMED.


author: It STEWART, J.

text:
    Cornelius JACKSON, Plaintiff-Appellant v. GENERAL MOTORS TRUCK PLANT, Defendant-Appellee.
    No. 38,987-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.
    Samuel H. Thomas, Tallulah, for Appellant.
    Lunn, Irion, Salley, Carlisle, & Gardner, by J. Martin Lattier, Shreveport, for Ap-pellee.
    Before BROWN, STEWART and PEATROSS, JJ.
   It STEWART, J.

Plaintiff, Cornelius Jackson, appeals a summary judgment dismissing his claim for workers’ compensation benefits as prescribed. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation (“OWC”).

FACTS

Mr. Jackson was employed in 1999 by General Motors Corporation (“GM”) at the truck assembly plant in Shreveport. According to the disputed claim for compensation form LDOL 1008 filed on April 9, 2001, Mr. Jackson was injured on February 9,1999, when he either pulled a muscle or dislocated something in his back, neck, or shoulder while using a machine to lift an engine. Mr. Jackson further stated on the LDOL 1008 form that he was not paid any workers’ compensation benefits and that he was “denied everything.”

Simultaneous to the receipt of Mr. Jackson’s disputed claim form, the OWC also received a letter from him indicating his belief that he had previously filed a disputed claim for compensation and requesting that the OWC search its records to find it. No copy of the earlier filed claim was attached to the letter or included in the record.

Mr. Jackson was unrepresented when he filed the disputed claim form of April 9, 2001. GM answered the claim and denied knowledge that Mr. Jackson was injured in an accident. GM also filed a motion for summary judgment, urging that Mr. Jackson’s claim had prescribed.

A workers’ compensation judge (“WCJ”) took up the matter on March 11, 2002, but neither Mr. Jackson nor any representative on his |2behalf was present. GM argued that Mr. Jackson failed to file his claim within a year of the February 1999 accident, despite receiving no compensation benefits. The WCJ granted the motion upon finding that Mr. Jackson’s claim had prescribed on its face. Judgment dismissing Mr. Jackson’s claim with prejudice was signed on March 18, 2000.

Mr. Jackson appealed to this court which rendered judgment on October 23, 2002, reversing the OWC’s ruling and remanding the matter for further proceedings. See Cornelius Jackson v. General Motors Truck Plant, 36,479 (La.App.2d Cir.10/23/02), 830 So.2d 426. The decision was based on the lack of evidence indicating that Mr. Jackson received proper notice of the hearing on the motion for summary judgment, the absence of which amounted to a denial of his procedural due process right to be heard.

After remand, the WCJ issued an order re-setting GM’s motion for summary judgment for rehearing. Due to continuances, the matter was not heard until January 15, 2004. In the interim, Mr. Jackson retained counsel and made several filings in opposition to the motion for summary judgment. Among the documents produced in opposition to GM’s motion for summary judgment were the following:

1. Three explanation of benefits forms regarding payments made by MetLife to Mr. Jackson under a sickness and accident plan. Two of the forms paid benefits for the periods of July 14, 1999 through August 17, 1999, and January 31, 2000 through February 2, 2000. These two forms had the same claim number (389905063522) and designated the first date of disability as April 30, 1999. The third form stated a different claim number (429907302250), designated the first date of disability as July 26, 1999, and paid benefits in the amount of $46.48 for the period of July 26, 1999 to August 2, 1999. The third form indicates that the payment was adjusted for workers’ compensation benefits paid during the same period in the amount of $627.67.
|o2. A notice from the OWC dated July 14, 1999, requesting that the employee complete form LDOL WC-1025 and return it to the employer or the employer’s insurance company. The notice states, “Your workers’ compensation benefits may be suspended if you do not timely submit this Certification within 14 days of its receipt.” However, neither the employee recipient nor the employer are identified on the form.
3. An OWC form 1007 dated August 10, 1999, completed by GM to report an occupational injury allegedly suffered by Mr. Jackson on July 19, 1999, five months after the injury for which he filed the disputed claim for compensation at issue in this matter.
4. An affidavit by Mr. Jackson attesting to the fact that he was injured on February 9, 1999, and that he received sickness and accident benefits from Met-Life as set forth in the aforementioned explanation of benefit forms. Mr. Jackson stated that he filed a workers’ compensation claim prior to July 14,1999, as verified by the OWC notice of July 14, 1999, but he explained that the original disputed claim form was lost or misplaced by the OWC. Finally, he stated that he filed another workers’ compensation claim on March 27, 2001, after the benefits he was receiving from MetLife terminated.

At the hearing on the motion for summary judgment on January 15, 2004, Mr. Jackson also introduced numerous exhibits in globo. With a couple of exceptions, the bulk of the exhibits are Mr. Jackson’s medical records, which have no bearing on the timeliness of the filing of his claim, and duplicates of documents previously submitted to the court. The exceptions are:

1. An OWC Form 1007 completed by GM reflecting an occupational injury allegedly suffered by Mr. Jackson on April 29,1999.
2. Various printouts reflecting a payment history of benefits paid to Mr. Jackson under a “CPH UDS Claim” from June 3, 1999 through March 30, 2000, and two additional payments made on December 28, 2000 and December 19, 2001, The record includes no explanation as to the nature of these payments. However, these forms and others indicated the last day worked by Mr. Jackson as being April 29, 1999, the same date as the injury evidenced by the OWC Form 1007 mentioned above. Mr. Jackson alleged that these Lpayments were from MetLife, and the printouts do reflect the payments noted on the three MetLife stubs offered by Mr. Jackson. Moreover, the printouts refer to the same claim number (389905063522) and date last worked (April 29, 1999) as on two of the MetLife stubs.

At the conclusion of the hearing, the WCJ granted GM’s motion for summary judgment finding that Mr. Jackson’s claim was prescribed at the time of filing on April 9, 2001. Judgment was signed on February 9, 2004. Mr. Jackson filed a motion for a new trial claiming that the WCJ failed to consider the evidence submitted at the hearing reflecting the payments made to Mr. Jackson on March 30, 2000, December 12, 2000, and December 19, 2001. At the hearing on the new trial motion, the WCJ stated that the “only conclusion” that could be drawn is that the payments made in 2001 were retirement payments and not workers’ compensation benefits. Accordingly, the motion for new trial was denied. The instant appeal followed.

DISCUSSION

On appeal, Mr. Jackson argues that the WCJ erred in granting summary judgment where records submitted in opposition clearly establish that he received checks within the one-year prescriptive period. Mr. Jackson also argues that the record establishes that weekly benefits were paid by MetLife on behalf of GM.

The prescriptive period for workers’ compensation claims is set forth in La. R.S. 23:1209(A) as follows:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such | ¡^payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

Thus, under La. R.S. 23:1209(A), claims are barred unless filed: (1) within one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment of supplemental earnings benefits; or (3) one year from the time the injury develops if not immediately manifested, but no more than two years after the accident.

The courts have also recognized the applicability of the doctrine of contra non valentem to suspend prescription in workers’ compensation cases where the employer pays the injured worker wages in lieu of compensation or otherwise lulls the employee into a false sense of security justifying the employee’s delay in filing suit. See Lester v. Rebel Crane & Service Co., 393 So.2d 674 (La.1981), and Nathan v. Carter, 372 So.2d 560 (La.1979).

A party pleading prescription generally has the burden of proving it. Martin v. Comm-Care Corp., 37,600 (La. App.2d Cir.10/16/03), 859 So.2d 217, writ denied, 2003-3188 (La.2/6/04), 866 So.2d 225. However, when prescription is evident from the face of the pleadings, the plaintiff | f,bears the burden of showing that the action has not prescribed. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992).

Prescription is an issue that can be asserted in a motion for summary judgment. Patterson v. Weber Marine, 630 So.2d 687 (La.1993). When the moving party will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the moving party is not required to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. See La. C.C.P. art. 966(C)(2) and Berzas v. OXY USA, Inc. 29,835 (La. App.2d Cir.9/24/97), 699 So.2d 1149. The party opposing summary judgment may not rest on the mere allegations or denials of his pleadings; rather, his response must set forth specific facts showing a genuine issue for trial. If he fails to do so, then summary judgment, if appropriate, shall be granted. See La. C.C.P. art. 967(B).

In the motion for summary judgment, GM contended that Mr. Jackson’s claim was prescribed. Mr. Jackson filed suit seeking benefits for an injury that allegedly occurred on or about February 9, 1999. The disputed claim form was filed April 9, 2001, more than two years from the date of the alleged injury. Thus, on its face, Mr. Jackson’s claim was [^prescribed. The burden then shifted to Mr. Jackson to set forth specific facts showing a genuine issue for trial.

In opposing summary judgment, Mr. Jackson offered his affidavit in which he attested that he received “sickness and accident benefits” from MetLife from May 7, 1999, through April 2000. He did not state that the payments were either workers’ compensation benefits or wages in lieu of compensation. The exhibits did not include evidence of all payments allegedly received. He offered three MetLife check stubs. The latest stub was for benefits paid for the period of January 31, 2000 through February 4, 2000, pertaining to a benefit start date of May 7, 1999, and the first date of disability as April 30, 1999. Only the stub for benefits paid for the period of July 26, 1999, through August 2, 1999, makes reference to workers’ compensation, and this simply indicates that the MetLife payment was adjusted by a workers’ compensation payment. We note that this reference indicates a payment of workers’ compensation more than one year before the disputed claim was filed. Moreover, the MetLife stub indicates that the benefit start date and the first date of disability for this payment was July 26, 1999. Mr. Jackson also introduced a Form 1007 dated August 10,1997, and pertaining to a back injury sustained on July 19,1999.

Upon reviewing the evidence submitted by Mr. Jackson in opposition to summary judgment, we find nothing to indicate that he received any compensation payments for disability that would have interrupted the running of prescription. There is simply no showing that Mr. Jackson ever received compensation payments for total or partial disability related to the | sFebruary 1999 injury, had a delayed manifestation of his injury, was paid wages in lieu of compensation, or was otherwise lulled into a false sense of security justifying his failure to timely file his claim. Moreover, review of the additional exhibits Mr. Jackson offered at the summary judgment hearing and the evidence submitted with the motion for new trial shows no relation between the alleged injury of February 1999 and the “CPH UDS” benefits or the benefits paid by MetLife. Review of these forms, including the claim numbers thereon and the dates of disability, indicate that these payments were likely related to the injuries sustained by Mr. Jackson in April 1999 and July 1999, both of which are evidenced by an OWC Form 1007.

Finding no link between the evidence offered and the alleged injury of February 1999, we are compelled to conclude that Mr. Jackson has not set forth specific facts showing a genuine issue for trial. The evidence offered does not support his contention that prescription was interrupted. Summary judgment was properly granted.

CONCLUSION

For the above reasons, we hereby affirm the judgment of the OWC. All costs of appeal are assessed to the appellant, Mr. Jackson.

AFFIRMED.


author: L GASKINS, J.

text:
    Lonnie T. BURNS, Individually and on Behalf of the Estate of Raymond Burns, Ken Burns, Victor Burns, Bryan Campbell and Regina Rowe v. CLD, INC. d/b/a Green Meadow Haven Nursing Home and Evanston Insurance Company.
    No. 38,998-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Bolen, Parker & Brenner, Ltd., A.P.L.C., by Madeline J. Lee, James A. Bolen, Jr., Alexandria, for Defendant-Appellant, CLD, Inc. d/b/a Green Meadow Haven Nursing Home.
    Gold, Weems, Bruser, Sue & Rundel, by Peggy D. St. John, Michael J. O’Shee, Alexandria, for Defendant-Appellee, Ev-anston Insurance Co.
    Johnson & Placke, by Allan L. Placke, West Monroe, for Plaintiffs-Appellees, Lonnie T. Burns, et al.
    Roedel, Parsons, Koch, Blache, Balhoff & McCollister, by David A. Wooldridge, Jr., Larry M. Roedel, Baton Rouge, for Intervenor, Louisiana Patient’s Compensation Fund Oversight Board.
    Before WILLIAMS, GASKINS and DREW, JJ.
   L GASKINS, J.

CLD, Inc. d/b/a Green Meadow Haven Nursing Home, appeals a trial court ruling granting summary judgment in favor of Evanston Insurance Company (Evanston) on the issue of insurance coverage, and denying CLD’s motion for partial summary judgment and exception of prematurity. For the following reasons, we affirm the trial court judgment.

FACTS

The decedent, Raymond Burns, was a resident of Green Meadow Haven, a nursing home in Coushatta, Louisiana, operated by CLD, Inc. (CLD). On December 24, 2001, Mr. Burns was administered medication intended for another resident. He became ill, and the next day he was transferred to the local hospital. On December 31, 2001, he was placed on life support and on January 1, 2002, was transferred to a Shreveport hospital. Mr. Burns died on January 11, 2002.

Mr. Burns’ five children, Lonnie T. Burns, Victor Burns, Ken Burns, Bryan Campbell, and Regina Rowe, filed a medical malpractice complaint with the Louisiana Patient’s Compensation Fund (PCF) on September 17, 2002. Initially the PCF advised the plaintiffs that CLD was not a covered provider. On December 18, 2002, the plaintiffs filed a wrongful death and survival action in the trial court against CLD and its professional liability insurer, Evanston. On March 12, 2003, the PCF sent a letter to the plaintiffs stating that CLD was enrolled in the PCF from December 31, 2001, to October 1, 2003.

CLD filed an exception of prematurity seeking dismissal of the plaintiffs’ petition, claiming coverage under the Louisiana Medical | gMalpractice Act (MMA). CLD argued that it was a covered health care provider under the MMA at all times pertinent to the plaintiffs’ claims as evidenced by a certificate of enrollment issued to CLD by the PCF on January 16, 2002. The certificate provides that CLD was an enrollee in the PCF for the period of December 31, 2000, through December 31, 2001, under a “claims made” policy issued by Evanston and for the period December 31, 2001, through October 1, 2003, under a self-insured occurrence policy.

Evanston filed a motion for summary judgment, claiming that its policy provided “claims made” coverage. The policy required that, in order for coverage to attach, a claim must be made against the insured during the policy period. According to Evanston, the claim in the present case was brought after the policy expired on December 31, 2001. Also, CLD did not purchase an extended reporting endorsement/tail coverage to cover claims filed after the effective date of the policy. Therefore, it asserted that there was no coverage for these claims.

CLD filed its own motion for partial summary judgment claiming that La. R.S. 22:629 prohibits enforcement of policy provisions requiring that a claim be made within the policy period if it reduces the prescriptive period against the insurer to less than one year. According to CLD, under this statute, it should be covered for all claims brought within one year of a tort or discovery of a tort.

LThe PCF Oversight Board intervened, seeking a decision as to whether CLD was covered by the MMA, given the facts that CLD did not purchase tail coverage from Evanston and did not pay the PCF tail coverage surcharge to extend the reporting period for PCF coverage “as of the date the claim was filed.”

The motions for summary judgment and the exception of prematurity were heard in the trial court on February 19, 2004. The trial court granted Evanston’s motion for summary judgment, finding that there was no insurance coverage for the plaintiffs’ claims. The court denied CLD’s motion for partial summary judgment and its exception of prematurity. CLD appealed, arguing that the trial court erred in holding that there was no coverage for the plaintiffs’ claims under the “claims made” insurance policy issued by Evanston, despite the fact that there was coverage during the time of the alleged malpractice and suit was filed within one year of the date of the alleged malpractice. CLD also argues that this error led to the trial court’s erroneous dismissal of its exception of prematurity.

LEGAL PRINCIPLES

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and 14shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

CLD contends that Evanston could not deny coverage for any malpractice claim which was asserted within one year of the occurrence. This ease concerns a “claims made” insurance policy. The major distinction between the occurrence policy and the “claims made” policy constitutes the difference between the peril insured. In the occurrence policy, the peril insured is the occurrence itself. Once the occurrence takes place, coverage attaches even though the claim may not be made for some time thereafter. In the “claims made” policy, it is the making of the claim which is the event and peril being insured, subject to policy language, regardless of when the occurrence took place. Anderson v. Ichinose, supra.

A “claims made” insurance policy was issued by Evanston to CLD for the period beginning December 31, 2000, and ending December 31, 2001. Under the policy, Evanston agreed:

To pay on behalf of the Insured all sums in excess of the deductible amount stated in the Declarations which the Insured shall become legally obligated to pay as damages as a result of CLAIMS FIRST MADE AGAINST THE INSURED DURING THE POLICY PERIOD for personal injury by reason of any negligent act, error or omission in professional services rendered or that should have been rendered subsequent to the retroactive date specified in the Declarations by any person for whose acts, errors or omissions the Insured is legally | ¿responsible, and arising out of the conduct of the Insured’s profession ....

Evanston did not renew the policy and CLD did not purchase tail coverage for claims like the instant one which were based upon acts during the policy period, but reported later.

The plaintiffs’ right to sue Evanston arises out of the Direct Action Statute, La. R.S. 22:655(B)(1) which provides in pertinent part:

The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in soli-do....

CLD argues that the effect of the “claims made” language in the Evanston policy violates the statutory language of La. R.S. 22:629 which states in pertinent part:

A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state or any group health and accident policy insuring a resident of this state, regardless of where made or delivered shall contain any condition, stipulation, or agreement:
(3) Limiting right of action against the insurer to a period of less than twelve months next after the inception of the loss when the claim arises under any insurance classified and defined in R.S. 22:6(10), (11), (12), and (13), or to a period of less than one year from the time when the cause of action accrues in connection with all other insurances unless otherwise specifically provided in this Code.

CLD asserts that the “claims made” policy, requiring suit to be filed within the policy period, limits the prescriptive period for filing suit for damages arising from the alleged malpractice to less than one year, in | ^contravention of La. R.S. 22:629. It bases this argument on Hedgepeth v. Guerin, 96-1044 (La.App. 1st Cir.3/27/97), 691 So.2d 1355, writ denied, 97-1377 (La.9/26/97), 701 So.2d 983, and Bennett v. Krupkin, 1999-2702 (La.App. 1st Cir.12/22/00), 779 So.2d 923, writ denied, 2001-0193 (La.3/30/01), 788 So.2d 1190.

In Hedgepeth, a podiatrist had a “claims made” insurance policy effective from October 2, 1985, through January 31, 1986, but the policy was cancelled on November 10, 1985. On October 2, 1985, within the policy period, the podiatrist treated the diabetic plaintiffs foot problem. An infection developed, resulting in amputation of part of the foot. On July 23, 1986, a medical malpractice claim was filed against the podiatrist and his insurer. The insurer filed for summary judgment, asserting that it was not informed of this claim within the policy period, therefore the claim was not covered.

The appellate court found that, by limiting occurrence and reporting to the policy period, the plaintiff effectively had less than one year from the date of the malpractice to file suit. The court found the policy provision to be without effect because it conflicted with La. R.S. 22:629. The court stated that such provisions would enable an insurer to escape liability for an act of medical malpractice committed shortly before the end of the policy period but not reported until after the policy was no longer in force.

In Bennett v. Krupkin, supra, a doctor had “claims made” insurance through January 15, 1997, and did not purchase tail coverage. On October 25, 1996, the plaintiff discovered that she had breast cancer which had been 17misdiagnosed by the doctor. She filed suit on April 17, 1997. The court in Bennett applied Hedgepeth to find that the plaintiffs claim wafc covered by insurance. The court reasoned that a policy provision which effectively reduces the prescriptive period the plaintiff has to commence his cause of action is in clear violation of La. R.S. 22:629.

Similarly in Gary v. Witherspoon, 1998-1810 (La.App. 3d Cir.6/2/99), 743 So.2d 708, a dentist had “claims made” insurance coverage from February 10, 1988, through July 1995. He did not purchase tail coverage. The dentist treated the plaintiff from August 11, 1993, through January 25, 1996. On July 2, 1996, she discovered the dentist’s malpractice and filed suit on June 29, 1997. The court relied on Hedgepeth to hold that disallowing the claim would violate La. R.S. 22:629. The court found that the statute voided the insurance policy language requiring that the claim be made within the policy period.

According to Evanston, the supreme court case of Anderson v. Ichinose, supra, is controlling. In Anderson, a doctor had a “claims made” policy which expired on October 1, 1987. In October 1986, the doctor examined a biopsy of a mole from the plaintiffs toe and reported that it was not cancerous, but recommended its removal to prevent it from developing into cancer. The mole was removed in December 1987 and sent to the|sdefendant doctor who determined that it was cancerous. Several weeks later, the plaintiffs toe was amputated. Reexamination of the biopsy from October 1986 revealed that the doctor misdiagnosed the mole. Suit was filed against the doctor in November 1988. In May 1995, the doctor’s insurer was added. The insurer filed a motion for summary judgment arguing that there was no coverage under the policy because, although the alleged malpractice occurred during the policy period, the claim was not made or reported until after the policy expired on October 1, 1987. The doctor did not purchase tail coverage. The court considered the question of whether the policy’s denial of coverage, where the professional service occurred within the policy period but the claim was not made or reported until after the policy period expired, violated public policy.

The Anderson court cited Livingston Parish School Board v. Fireman’s Fund American Insurance Company, 282 So.2d 478 (La.1973), in which it concluded that a “claims made” policy that clearly limited coverage to acts discovered and reported during the policy period is not “per se impermissible.” In Anderson, the plaintiffs urged that the Direct Action Statute contained in La. R.S. 22:655 confers substantive rights on third-party tort victims which are vested when the injury occurs. The Anderson court determined that, unless there is a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. The court determined that the application of the 19requirements of a “claims made” policy under the facts of that case did not violate public policy. Anderson did not discuss La. R.S. 22:629.

DISCUSSION

We first note that this ease involves both a survival action and a wrongful death action. The survival action and the wrongful death actions are two separate and distinct causes of action that arise at different times, address themselves to the recovery of damages for different injuries and losses, and accrue to different tort victims.

Survival Action

The survival action comes into existence simultaneously with the tort, permits recovery only for damages suffered by the victim from the time of the injury to the moment of death, and is transmitted to the victim’s beneficiaries upon his death. The survival action in the present case would only be covered by the “claims made” insurance policy if a claim was made within the policy period. No such claim was made. Therefore, there is no insurance coverage for the survival action.

Wrongful Action

The wrongful death action arises only if and when the victim dies and compensates the beneficiaries for their own individual injuries that occur at the moment of the victim’s death and thereafter. The wrongful death action is not a derivative cause of action. Rather, the wrongful death action is an independent and distinct action that arises even in the absence of a viable personal injury action by the direct tort victim and compensates the beneficiaries for their own individual injury arising out of the victim’s |indeath. Walker v. State Farm Mutual Automobile Insurance 37,063 (La.App.2d Cir.6/25/03), 850 So.2d 882, writs denied, 2003-2019, 2003-2117 (La.12/19/03), 861 So.2d 574, 575.

As to the wrongful death action in this case, the negligent act or occurrence happened on December 24, 2001, although the right of action did not accrue until the father’s death on January 11, 2002. Since no claim was made for the negligent act during the policy term, the “claims made” policy does not provide coverage for the wrongful death action. When the plaintiffs’ father died, CLD had occurrence-based insurance which did not cover the wrongful death cause of action because the occurrence of negligence took place prior to its inception.

An insurance policy is a contract and has the effect of law between the parties. La. C.C. art. 1988; Spurrell v. Ivey, 25,359 (La.App.2d Cir.1/25/94), 630 So.2d 1378. In the absence of conflict with statutory provisions or public policy, insurers may by unambiguous and clear notice provisions limit their liability and impose such reasonable conditions as they wish upon the obligations they assume by their contract. Livingston Parish School Board v. Fireman’s Fund American Insurance Company, supra.

Such a provision in a “claims made” policy was found not to be against public policy in Anderson as well as Livingston, both cases decided by the Louisiana Supreme Court. We choose to follow that reasoning in this matter. We reject the reasoning of Hedgepeth v. Guerin, supra, Bennett v. Krupkin, supra, and Gary v. Witherspoon, supra. We find that the | ^insurance policy properly limited coverage to claims made within the policy period. Because a claim was not made within the policy period, there is no coverage. The trial court correctly granted summary judgment in this matter.

PATIENT COMPENSATION FUND COVERAGE

The court also correctly denied the exception of prematurity filed by CLD. The type of PCF coverage follows the type of coverage the health care provider has. La. R.S. 40:1299.42 E(l). Until December 31, 2001, the PCF coverage was based on the “claims made” coverage of the Evans-ton policy. Thereafter, when the nursing-home became self-insured, the coverage became occurrence-based. Since no claim was made prior to December 31, 2001, no occurrence took place after that, and CLD failed to pay the PCF surcharge for tail coverage for claims arising from malpractice within the period of coverage of the Evanston policy, CLD is not covered by the PCF in this case. When the nursing-home did not procure tail coverage insurance after the expiration of their “claims made” policy, any claims made after December 31, 2001, against the insurer or the PCF were not covered by either of them.

CONCLUSION

For the reasons stated above, we affirm the trial court ruling granting summary judgment in favor of Evanston Insurance Company and denying the motion for partial summary judgment filed by CLD, Inc. We also affirm | ]2that portion of the trial court judgment denying the exception of prematurity filed by CLD, Inc. Costs in this court are assessed to CLD, Inc.

AFFIRMED.

      . This extension, referred to as “tail coverage,” covers occurrences within the policy period that produce claims within the specified extended reporting period. See Anderson v. Ichinose, 1998-2157 (La.9/8/99), 760 So.2d 302.

      . The plaintiffs and the PCF filed briefs in this matter urging this court to affirm the trial court judgment.

      . In Verhalen v. Forum Health Management of Georgia, Inc., 34,090 (La.App.2d Cir. 11/3/00, 771 So.2d 238). 771 So.2d 238, writ denied, 2001-0072 (La.3/9/01), 786 So.2d 738, this court considered the assertion that a medical malpractice claim had prescribed. A doctor had “claims made” coverage during the time the alleged malpractice occurred, but the claim was not brought against him until seven years after the date of the alleged malpractice, long after the expiration of the policy. The insurer was added ten years after the alleged malpractice. Although this court reviewed Hedgepeth and Bennett, we concluded that under the facts presented, La. R.S. 22:629 was not violated. See also Robicheaux v. Adly, 2000-1207 (La.App. 3d Cir. 1/31/01), 779 So.2d 1048, writ denied, 2002-2783 (La.2/07/03), 836 So.2d 100, finding that the time to bring the claim was not impermissibly limited by the policy language.


author: JjLOLLEY, J.

text:
    ENTERPRISE PROPERTY GROCERY, INC., Plaintiff-Appellant v. SELMA, INC., Defendant-Appellee.
    No. 39,012-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Blanchard, Walker, O’Quin & Roberts, by Francis Michael Carmody, Shreveport, for Appellant.
    Pesnell Law Firm, by Billy Ray Pesnell, Shreveport, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   JjLOLLEY, J.

Enterprise Property Grocery, Inc. (“Enterprise”) appeals a judgment rendered in the Shreveport City Court, Parish of Cad-do, State of Louisiana, granting an exception of lis pendens in favor of Selma, Inc. (“Selma”). For the following reasons, we affirm.

FACTS

A recitation of the underlying facts of this case is unnecessary as they have been thoroughly discussed in Enterprise Property Grocery, Inc. v. Selma, Inc., 38,747 (La.App.2d Cir.09/22/04), 882 So.2d 652 (“Enterprise I ”).

In the instant action, Enterprise filed a rule for eviction against Selma in the Shreveport City Court on December 19, 2003, seeking to terminate Selma’s right to occupy premises located at 7727 Linwood Avenue, Shreveport, Louisiana (the “leased property”). Enterprise claimed it had a right to evict Selma based on the terms of an alleged written commercial lease agreement dated February 28, 1997(the “first lease”). Enterprise maintained that Selma had continued to occupy the leased property on a month-to-month basis even though the term lease had expired.

Selma responded by filing a declinatory exception of lis pendens alleging that before the instant action was filed in the Shreveport City Court, Enterprise had filed an eviction suit against Selma in the same capacity in the First Judicial District Court on September 15, 2003, seeking eviction from the leased premises based upon the same transaction (the first lease). Selma further denied that it was occupying the leased | ¡^premises on a month-to-month basis and instead claimed that it was occupying the leased premises pursuant to a new lease effective September 1, 2002, (the “new lease”) and that it had complied with the terms and provisions of the new lease in all respects.

A trial of the matter was held on January 15, 2004, wherein the city court sustained Selma’s declinatory exception of lis pendens. Judgment was rendered accordingly, and Enterprise’s rule for eviction was dismissed without prejudice on February 23, 2003. This appeal by Enterprise ensued.

DISCUSSION

On appeal, Enterprise contends that the Shreveport City Court erred in concluding that the existence of the first term lease constituted the same transaction or occurrence for both the district court suit and the city court suit. Enterprise argues that the Shreveport City Court erred in finding that the city court action alleging nonpayment of rent was barred under the doctrine of lis pendens as a result of a prior district court judgment of eviction based on expiration of the terms of the first lease. Enterprise contends that it entered into a commercial lease agreement with Selma for the property located at 7727 Linwood Avenue in Shreveport; that the first lease with Selma terminated on March 1, 2002, with an option to renew the lease for an additional five year term upon giving timely written notice of intention to renew the lease. Enterprise alleges that Selma did not exercise that option, but continued to occupy the property on a month-to-month basis. It further contends that Selma’s non-payment of the November 1, 2003, rent was a separate transaction or occurrence constituting default pursuant to the terms of the lease. It maintains that the district court suit | ¡¡filed on September 15, 2003, seeking eviction was based on the original lease and, therefore, could not have been based on allegations of non-payment of rent on November 1, 2003, because this occurrence had not yet occurred. Selma answered Enterprise’s rule for eviction with an affirmative defense that it had timely tendered or paid all rent due Enterprise.

In Enterprise I, the First Judicial District Court for Caddo Parish ruled in favor of Enterprise on November 2, 2003, evicting Selma from the premises. A suspen-sive appeal from that decision ensued and an opinion was rendered by this court in Enterprise /, wherein we found that there was an agreement between Enterprise and Selma with respect to the terms of the written lease as of November 1, 2002, and that the district court was clearly wrong in finding that the new lease did not take effect without an authorized signature from Enterprise. This court found that the record showed that Selma paid rental payments of $2,000 from November 2002 through July 2003 consistent with the new lease provisions and, that Enterprise accepted those rental payments during that time period with an awareness of Selma’s expectation of a lease with a term. This court concluded that the district court erred in ordering Selma to vacate the premises and reversed the district court’s judgment. Now we are called to decide whether the Caddo Parish suit and the Shreveport City Court suit are based on the same transaction or occurrence within the meaning of La. C.C.P. art. 531.

Louisiana C.C.P. art. 531 provides:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by 14excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Additionally, the test for deciding whether an exception of lis pendens should be granted is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corporation, 96-1224 (La.App. 4th Cir.06/26/96), 682 So.2d 246, 248, writs denied, 96-1947, 96-1966 (La.11/01/96), 681 So.2d 1268 citing, Fincher v. Ins. Corp. of America, 521 So.2d 488 (La.App. 4th Cir.02/10/88), writ denied 522 So.2d 570 (La.1988). The exception of lis pendens has the same requirements as the exception of res judicata, and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities. Glass v. Alton Ochsner Medical Foundation, 2002-0412 (La.App. 4th Cir.11/06/02), 832 So.2d 403, writs denied, 2002-2977 (La.03/14/03), 839 So.2d 36, 2002-3018 (La.03/14/03), 839 So.2d 37.

Louisiana R.S. 13:4231 states in part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the parties, except on appeal or other direct review, to the following extent:
:ji j}:
(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.

| ¡^Pursuant to La. C.C.P. art. 531, the central inquiry becomes whether the eviction proceeding of the Shreveport City Court action arose out of the same transaction or occurrence which is the subject matter of the first suit filed in district court. In both of Enterprise’s actions against Selma, it based its claim for eviction on the first lease and not on the new lease this court found to be valid, i.e., the same transaction. Consequently, we find the courts in the two different suits were asked to make factual determinations as to issues based on the same transaction or occurrence between the same parties in the same capacities, and therefore Selma, as defendant in both suits, was entitled under the doctrine of lis pendens to have the second suit dismissed without prejudice. See Spallino v. Monarch Sign Co. 2000-447 (La.App. 3d Cir.10/11/00), 771 So.2d 784.

Finally, in the interest of judicial economy and fairness we note that the record before us is void of evidence indicating whether or not Selma was in fact in default of paying the November 1, 2003 rent as alleged by Enterprise. Thus we cannot determine as a matter of law whether Enterprise has a cause of action for eviction against Selma under the terms of the new lease.

For the reasons assigned above, we affirm the judgment rendered in the Shreveport City Court suit barring the instant action under the doctrine of Us pendens. Costs of this appeal are assessed to Enterprise.

AFFIRMED.


author: JjBROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Dominique DAVIS, Appellant.
    No. 39,070-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Carl E. Cooper, Paula Corley Marx, G. Paul Marx, Louisiana Appellate Project, for Appellant.
    Jerry Jones, District Attorney, Charles Brumfield, Assistant District Attorney, for Appellee.
    Before BROWN, C.J., and GASKINS, and MOORE, JJ.
   JjBROWN, C.J.

After being tried and convicted of distribution of cocaine, defendant, Dominique Davis, challenges his adjudication as a second felony habitual offender and the resulting sentence. The first assignment of error, that the sentence was doubly enhanced, is factually erroneous. The second assignment claims that the trial court erred by considering post conviction behavior. We affirm.

Discussion

Defendant was charged with distribution of cocaine, a violation of La. R.S. 40:967. He was tried and found guilty as charged on October 31, 2002. On November 26, 2002, defendant was sentenced to a ten-year term at hard labor. The first five years were ordered to be without benefit of probation, parole, or suspension of sentence. The state then filed a bill of information alleging that defendant was a habitual felony offender and that he should be sentenced pursuant to La. R.S. 15:529.1 and 40:982. Previously, on January 21, 1997, defendant had pled guilty to a reduced charge of possession of cocaine and was sentenced to three years suspended and two years probation. His probation was thereafter revoked.

Inexplicably, the hearing was not had for some 17 months after the filing of the habitual offender bill. After the prosecution proved that defendant was a second felony drug offender, defendant presented two character witnesses. The prosecutor advised the court that since his conviction defendant had been arrested for two counts of introduction of contraband into a penal facility, but that the state would forgo prosecution of those cases.

|2The trial judge sentenced defendant to 20 years at hard labor, with the first five years to be without benefit, and with credit for time served. Also, defendant was to complete drug treatment before his release. Defendant appeals this sentence.

Defendant claims that he was sentenced pursuant to two enhanced sentencing statutes, namely La. R.S. 15:529.1 and 40:982. La. R.S. 40:982 provides for second and subsequent offenses of the same drug crime but requires that the indictment or information specifically charge that second offense. State v. King, 99-860 (La.App. 3d Cir.02/02/00), 757 So.2d 731. Apparently defendant believes that he was charged with a second offense distribution which provides a greater penalty than for distribution. However, this is clearly erroneous. The amended bill of information filed on October 30, 2002, the day before the trial, charged only distribution, not distribution of cocaine second offense. The initial sentence was not based on any enhanced or habitual offender proceeding. Thereafter, the habitual offender bill was filed. While the habitual offender bill cited both La. R.S. 15:529.1 and 40:982, the trial court noted this error during the proceedings and elected to proceed solely under La. R.S. 15:529.1. Therefore, defendant’s sentence was enhanced only once under the habitual offender statute. Accordingly, there is no merit to defendant’s first complaint.

The next issue arose during the habitual offender hearing when the ADA told the court of two new charges against defendant for the introduction of contraband into a penal facility. The ADA then said that the state would not prosecute on those charges.

| sThe court ruled that “based upon all of this ... working from the original sentence ... and the fact that the minimum now is 15 years ... and considering the subsequent violations since the conviction ... it is the sentence of the Court that you are sentenced to 20 years in prison at hard labor” with credit for time served and the first five years to be without benefit.

The jurisprudence of this state holds that in determining an appropriate sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may review all criminal activity. Moreover, a trial judge may consider a defendant’s attitude and criminal propensities. As a general rule, the trial court has wide discretion to sentence within statutory limits. State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993). In the absence of allegations of mistake or falsehood, evidence of uncharged offenses is a valid consideration in sentencing. State v. Myles, 94-0217 (La.06/03/94), 638 So.2d 218; State v. Jones, 31,569 (La.App.2d Cir.12/09/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App.2d Cir.10/29/97), 702 So.2d 40; State v. Emerson, 31,408 (La.App.2d Cir.12/09/98), 722 So.2d 373, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470. Defendant did not respond or object to the ADA’s statement. The trial judge, when considering the sentence, correctly noted defendant’s propensity for criminal activity-

Under the habitual offender statute, La. R.S. 15:529.1, defendant, as a second felony offender, faced a sentence range of 15 to 60 years. The trial court previously found defendant, who sold 16 rocks, to be an “up-the-line” |4dealer. The 20-year sentence was appropriate and on the low end for this charge.

Conclusion

For the reasons above, defendant’s sentence of 20 years at hard labor with the first five to be without benefit and credit for time served is AFFIRMED.


author: | .MOORE, J.

text:
    STATE of Louisiana, Appellee v. James E. DUHEY a/k/a James E. Duhe, Appellant.
    No. 39,015-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Louisiana Appellate Project, by G. Paul Marx, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny Douciere, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ.
   | .MOORE, J.

The appellant was convicted by a jury for aggravated battery of a fellow inmate and sentenced to the maximum term of 10 years at hard labor to be served consecutive to the six-year sentence he is currently serving. The defendant appeals his sentence. We affirm.

Facts

The defendant apparently had a disagreement regarding cigarettes with the victim, fellow inmate Troy Millican. Later, while Millican was asleep on his bed at the Richland Parish Detention Center, defendant beat him in the face with a padlock. The victim was taken to a hospital for his facial injuries, which required 52 stitches. Defendant was charged with aggravated battery, tried by a jury and convicted as charged. He was subsequently sentenced by the court to ten years at hard labor. The sentence is to be served consecutively to a six-year sentence he is now serving.

Defendant complains that the trial court imposed an excessive sentence under the circumstances. He asserts that he has been denied necessary medications to help in controlling his anger, and he claims he has not received correctional treatment since he has been in state custody since age 16. He says he is subjected to harassment and threats at the detention center. He argues that the state should bear some of the responsibility for the offense, and his incarceration should be with special conditions and programs to rehabilitate him.

The state argues that the appellant’s history of violence and the brutal attack on a sleeping victim support the maximum sentence.

| ¡.The crime of aggravated' battery carries a maximum sentence of ten years imprisonment with or without hard labor and a fine up to five thousand dollars, or both. La. R.S. 14:34.

Under the sentencing guidelines set forth in La. C. Cr. P. art. 894.1(A), when a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if any of the following occurs:

(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(25) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
(29) The defendant’s criminal conduct was the result of circumstances unlikely to recur.
(30) The defendant is particularly likely to respond affirmatively to probationary treatment.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.

The record shows that, contrary to the statement that defendant has been in custody since age 16, this defendant had the benefit of a probated sentence on his first felony conviction, a simple robbery conviction. Further, |3he committed his second felony, an armed robbery, during that probation périod. The record also supports the conclusion that the defendant has a history of violent behavior and that he has not learned from his past mistakes. The trial court did not misapply the provisions of La. C. Cr. P. art. 894.1 A when it decided that the appellant needed to be incarcerated for a substantial term.

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. 2 Cir. 6/24/98), 715 So.2d 641. 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. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2 Cir.), writ denied, 521 So.2d 1143 (1988).

|4The record shows the trial court was aware of defendant’s claim that he was previously on medication for anger management. The court reviewed the PSI. The PSI indicates that the defendant has had “psychiatric problems” since he was 13, and he has not taken any medications since he was first incarcerated in 1997. The report also states that he has tried to get appointments for his mental health but cannot do so because of the cost.

At the sentencing hearing the appellate counsel told the trial court that the appellant “had emotional problems controlling his temper at an early age and I think that he was placed upon some medication for that ... he has not been able to get his medication....”

The trial court found the appellant to be a violent person. He stated that even though the victim was a fellow inmate, he and others in the prison environment deserved to be protected from this behavior. The trial court noted that the appellant had been in seven fights while incarcerated.

Further, the trial court had no reason to find, as the appellate counsel argues in his brief, that the victim in some way was responsible for this fight. Instead, the record shows that the victim was brutally beaten while he was sleeping on his bed. The lacerations on the victim’s face required 52 stitches.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392; State v. Callahan, 29,351 (La.App. 2 Cir. 2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

|RAs this court said in State v. Hunt, 34,945 (La.App. 2 Cir. 9/26/01), 797 So.2d 138, rehearing denied (10/25/01), “The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant.” State v. Landman, 29,211 (La.App. 2 Cir. 1/22/97), 687 So.2d 652; State v. Tully, 430 So.2d 124 (La.App. 2 Cir.), writ denied, 435 So.2d 438 (1983).

This 10-year maximum sentence is admittedly harsh, but there is no showing of a manifest abuse of sentencing discretion. The sentence is neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice. The court’s articulation and the matters of record adequately support the sentence imposed on this third felony offender.

The assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: [,WILLIAMS, J.

text:
    Ethel BRADSHAW, Plaintiff-Appellant v. BROOKSHIRE GROCERY COMPANY d/b/a Super One Store 603 and Roy Shaw, Defendant-Appellee.
    No. 38,960-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Paul J. Tellarico, Alexandria, for Appellant.
    Jay P. Adams, Monroe, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.'
   [,WILLIAMS, J.

The plaintiff, Ethel Bradshaw, appeals a judgment dismissing her personal injury claim against Brookshire Grocery Company d/b/a Super One Store 603 (“Super One”) and Roy Shaw. For the following reasons, we affirm the trial court’s judgment.

FACTS

On July 1, 2001, Roy Shaw, a Super One assistant store manager, cut a paper sign from the ceiling that fell on Ms. Bradshaw, a customer in the Super One grocery store. The sign had been hanging from the ceiling and was approximately two feet wide and two and one-half feet long. It was secured by a string and was approximately eight to ten feet above the ground.

At trial, Ms. Bradshaw testified that she had finished shopping and was walking to the front of the store to leave, when the sign fell “out of the air.” She stated that the sign fell across the left side of her head and hit the side of her straw hat, turning the hat to one side. She alleged that the impact from the sign knocked a hole in her hat “about the size of a fingernail.” She also testified that she felt “like a piece of trash had just kind of blown across” her left eye, and she specifically stated that there was “not a blow” to her left eye. Ms. Bradshaw initially testified that the falling sign cut her face; however, she later denied that her face was cut.

Ms. Bradshaw alleged that after the incident, Shaw checked on her, and she immediately informed Shaw that she was dizzy. According to Ms. l2Bradshaw, Shaw escorted her to his office, gave her a glass of water and filled out some paperwork on the accident. She testified that she left the store a short time later and went home. She testified that when she arrived home, she took some Tylenol and slept most of the day.

On July 2, 2001, Ms. Bradshaw sought medical attention from Dr. Allen Spires, her family physician. She testified that she informed Dr. Spires of the accident and complained of blurredness, dizziness, headaches, facial numbness, a knot on her head (approximately “the size of a fifty cent piece”) and pain in the back of her left eye. She testified that Dr. Spires examined her left eye because it was “solid red.” However, on cross examination, Ms. Bradshaw testified that she had neither back nor neck pain, a swollen eye nor any headaches after the accident. Ms. Bradshaw testified that Dr. Spires gave her nasal spray and eye drops for her left eye. She also testified that Dr. Spires attempted to contact an eye doctor for her. According to Ms. Bradshaw, she saw Dr. Spires more than once for her injuries from the accident.

Ms. Bradshaw testified that she sought medical attention from Dr. Gerald Brous-sard, an ophthalmologist, the following month. She testified that Dr. Broussard dilated her eye and gave her some eye drops and Valium. Initially, Ms. Bradshaw said that the Valium was for sharp pain, but she later stated that the Valium was for inflammation. Ms. Bradshaw testified that before the accident, she had never had any problems with her eyes. She testified that after the accident, she could “hardly see” out of her left eye and her eye felt as if it had a “scab” over it. She denied having cataracts and | ¡¡denied being informed by Dr. Broussard that the “scab” over her left eye was associated with a cataract. According to Ms. Bradshaw, she had to wear eyeglasses as a result of the accident and Dr. Broussard told her to get reading glasses. However, on cross examination she admitted she first discovered that she had a reading problem in December 2001, approximately five months after the accident. Ms. Bradshaw admitted she had experienced a stroke prior to the accident that had affected her left side. She also admitted that in June 2001, her employer placed her on Social Security disability because he was concerned that she would have another stroke.

In contrast to Ms. Bradshaw’s testimony, Shaw testified that at the time of the incident, the sign waved or floated down and hit Ms. Bradshaw’s head. He testified that the sign tilted Ms. Bradshaw’s hat to the side and the string attached to the sign “just fluttered down.” Shaw testified that immediately after the accident, Ms. Bradshaw told him that she was fine, after he asked twice if she was okay. He also testified that Ms. Bradshaw did not appear to be hurt or injured. According to Shaw, approximately fifteen minutes later, Ms. Bradshaw’s son approached him and stated that his mother needed him. Shaw stated that he then went to Ms. Bradshaw, escorted her to his office, gave her some water and filled out an accident report. Shaw testified that while they were in the office, Ms. Bradshaw informed him that she felt dizzy and was experiencing a tingling in her left ear. Shaw testified that Ms. Bradshaw did not inform him of any eye problems or mention a knot on her head. He also stated that after Ms. ^j^Bradshaw left the store on the day of the accident, she never called or returned to inform him of any additional injuries.

In contrast to Ms. Bradshaw’s testimony, Dr. Spires testified that he examined Ms. Bradshaw and her examination was normal. He testified that he ordered a CT scan because of her complaint of head discomfort, but there were no objective findings of an injury. Dr. Spires’ records did not indicate that Ms. Bradshaw was experiencing any eye pain or soreness. Dr. Spires testified that he did not know that Ms. Bradshaw had later seen an ophthalmologist. On July 31, 2001, Dr. Spires saw Ms. Bradshaw because of a foot problem, and he did not detect any head or eye problems. In January 2002 (approximately six months after the accident), Ms. Bradshaw reported to Dr. Spires that she was getting dizzy. Dr. Spires opined that the dizziness was associated with her blood pressure elevation and other chronic medical problems.

Dr. Broussard testified that he first examined Ms. Bradshaw on October 10, 2001. Ms. Bradshaw informed him of the accident (stating that it occurred in August) and of an emergency room visit. She complained of eye pain for the past couple of months and stated that she was taking Advil. During the first visit, Dr. Brous-sard concluded that Ms. Bradshaw had normal vision; however, she had an inflammatory disease in her left eye known as episcleritis. Dr. Broussard felt that although the disease was normally caused by the immune system, he could not conclusively rule out that the disease was caused by trauma. However, he stated that if the ^disease was caused by the accident, there should have been a blow to the eye. He also opined that there would be a severely red eye at the time of the accident or within a week of the accident.

Dr. Broussard noted that Ms. Bradshaw’s episcleritis had cleared up after a few weeks of treatment with Pred Forte, a steroid drop and a nonsteroid pill. He opined that she had 20/20 vision in her left eye. On August 30, 2002, Ms. Bradshaw returned to Dr. Broussard complaining of sharp pains in her left eye, which Dr. Broussard diagnosed as neuralgia and treated with Valium. Dr. Broussard testified that her vision was basically 20/20. He did not know if the pains were connected to the accident; however, he opined that if they were connected, there probably should have been evidence of the pains at the time of the accident. Also, Dr. Broussard noted that Ms. Bradshaw had cataracts and glaucoma, which were unrelated to the accident. He further stated that her complaint at the time of trial, of a film over her left eye, would be consistent with cataracts; however, Ms. Bradshaw never complained to him about a film over her left eye.

At the conclusion of the trial, the trial court found that Ms. Bradshaw’s alleged injuries did not result from the incident at Super One, but were a result of her pre-accident stroke which affected the left side of her body. The court dismissed Ms. Bradshaw’s suit with prejudice. Ms. Bradshaw appeals.

DISCUSSION

Ms. Bradshaw contends the trial court erred in finding that she did not carry her burden of proving that her inju-ríes resulted from the accident. | fiShe argues that her injuries were caused by the falling sign and did not result from her pre-accident stroke.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and any alleged injuries. American Motorist Insurance Company v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Collins v. Shelter Mutual Insurance Company, 36,528 (La.App.2d Cir.12/11/02), 833 So.2d 1166, writ denied, 2003-0124 (La.3/21/03), 840 So.2d 539; Williams v. State Farm Mutual Automobile Insurance Company, 36,439 (La.App.2d Cir.10/23/02), 830 So.2d 379. The plaintiff must prove causation by a preponderance of the evidence. Collins v. Shelter Mutual Insurance Company, supra. The plaintiff satisfies this burden by proving through medical and lay testimony that it was more probable than not that the injury was caused by the accident. Collins v. Shelter Mutual Insurance Company, supra; Williams v. State Farm Mutual Automobile Insurance Company, supra.

Whether the accident caused the plaintiffs injuries is a factual question which should not be reversed on appeal absent manifest error. Pinsonneault v. Merchants & Farmers Bank & Trust Company, 2001-2217 (La.4/3/02), 816 So.2d 270; James v. Robinson, 38,774 (La. App.2d Cir.8/18/04), 880 So.2d 975; Hughes v. Scottsdale Insurance Company, 35,043 (La.App.2d Cir.8/22/01), 793 So.2d 537. Reversal is warranted only if the appellate court finds that a reasonable factual basis for the trial court’s finding does not exist in the record and that the finding is clearly wrong on the record. Pinsonneault v. Merchants & Farmers Bank & Trust Company, supra; James v. Robinson, supra; Perow v. Lenzly, 30,833 (La. App.2d Cir.8/19/98), 716 So.2d 519. The reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Pinsonneault v. Merchants & Farmers Bank & Trust Company, supra.

After a thorough review of this record, we conclude that the trial court was not clearly wrong in finding that the plaintiffs alleged injuries to her head and left eye were not caused by the accident. The trial court adopted Shaw’s testimony of the accident, finding that the sign had fluttered down and hit the plaintiff, the plaintiff initially informed Shaw twice that she was okay and it was later that the plaintiffs son sought Shaw’s assistance for his mother. The trial court specifically noted that the plaintiff informed Shaw of a problem with her ear and did not mention any head or eye injuries. The trial court concluded that any alleged injuries to plaintiffs head and eye were not caused by the accident.

The trial court also found that the physicians’ testimony and opinions were contradictory to Ms. Bradshaw’s claims with regard to her injuries. The trial court gave an illustrative discussion of some of the contradictions, which we adopt in our review of this case. Contrary to the plaintiffs testimony, Dr. Spires only examined the plaintiff once in connection with the accident. Dr. Spires testified that on the day after the accident, the plaintiff had a normal exam and her CT scan did not show any specific physical findings. He did not recall any eye pain or soreness. Dr. Spires did |snot know that the plaintiff had seen an ophthalmologist. Again, on July 31, 2001, during a visit because of a foot problem, Dr. Spires did not note any eye or head problems. In January 2002, Dr. Spires was informed of plaintiffs dizziness, which he associated with an elevated blood pressure and chronic problems connected to plaintiffs stroke and vascular disease. Contrary to the plaintiffs testimony, Dr. McDonald examined the CT scan and did not detect any head trauma or signs of a recent injury. Furthermore, Dr. Broussard saw the plaintiff a few months after the accident and not the month following the accident. Dr. Brous-sard was unable to relate Ms. Bradshaw’s symptoms to the accident. He found that “the symptoms would require a pretty good blow or hit” and “not a flick,” as both Shaw and Ms. Bradshaw had described in their testimony. Moreover, Dr. Broussard opined that the symptoms experienced by the plaintiff usually resulted from a problem with the immune system and not a blow to the eye.

After discussing the numerous contradictions and inconsistencies in Ms. Bradshaw’s testimony, the trial court found that the plaintiff was mistaken as to the cause of her health problems, which were “more likely a result of her earlier stroke.” It found that if her injuries were caused by the accident, at least one of her doctors would have noticed some physical symptoms. We agree with the trial court’s finding that none of Ms. Bradshaw’s doctors could connect her symptoms to the accident.

Consequently, we conclude that there exists a reasonable factual basis for the trial court’s finding that Ms. Bradshaw’s injuries were not caused by the accident and that she was not entitled to damages. Thus, the trial court |9was not clearly wrong in rejecting the plaintiffs claims, and dismissing her lawsuit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment in favor of Brookshire Grocery Company d/b/a Super One Store 603 and Roy Shaw is affirmed. Costs of this appeal are assessed to the plaintiff, Ethel Bradshaw.

AFFIRMED.

      . The defendant, Brookshire Grocery Company’s correct name is Brookshire’s Grocery Company. However, to maintain consistency with the case caption, we will refer to the defendant as Brookshire Grocery Company.

      . Dr. Brenton McDonald, a radiologist, reviewed Ms. Bradshaw’s CT scan films and concluded that there was no evidence of a recent injury or any head trauma.