author: hGREMILLION, Judge.

text:
    Donnie BOUDREAUX, et al. v. Benjamin J. WIMBERLEY, et al.
    No. 02-1064.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      Christopher Luke Edwards, Lafayette, LA, for Plaintiffs/Appellees Donnie Bou-dreaux Tammy Boudreaux.
    Preston D. Cloyd, Lafayette, LA, for Defendants/Appellants State Farm Mutual Auto Ins. Co. Benjamin J. Wimberley.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

The defendants, Benjamin Wimberley and State Farm Mutual Automobile Insurance Company (sometimes collectively referred to as State Farm), appeal the trial court’s grant of a new trial and its subsequent finding of fault on their part. For the following reasons, we affirm the trial court’s grant of a new trial, but reverse its subsequent judgment and render judgment on the record.

FACTS

On March 23,1997, the plaintiffs, Donnie and Tammy Boudreaux and their six-month old daughter, Tracy, were involved in an automobile accident after leaving the home of Tammy’s mother and stepfather, the Ellises. Their home is located on the westbound side of an unlit stretch of U.S. Highway 190 in St. Landry Parish, Louisiana. Hwy 190 is a four-lane thoroughfare, divided at the site of the accident, which runs east and west across Louisiana. The accident occurred at dusk, at approximately 8:00 p.m. There are no street lights in the vicinity of the accident, with the only lighting coming from adjacent homes. Donnie was driving a 1995 Isuzu pickup, which they had purchased new six to eight months prior to the accident. The pickup had approximately 23,000 to 25,000 miles on it at the time of the accident.

Donnie exited the Ellises’ driveway and turned west on Hwy 190, traveling approximately 150 feet before crossing over to the eastbound lane in order to reach their home in Melville, Louisiana. He stopped at the crossover and then pulled into the left lane of the westbound portion of Hwy 190. He had just shifted from first to second gear when he heard a loud noise from the pickup, after which it stopped “pulling.” He attempted to maneuver the pickup towards the left and onto |¡>the grassy median. At the same time, Wim-berley was in the left lane approaching the Boudreauxs’ pickup from the rear. Upon seeing flashing lights from an emergency vehicle in his rearview mirror, he intended to move his van from the left to the right lane. When he looked forwards again, he saw the Boudreauxs’ pickup just ahead of him, which appeared to be either stopped or moving slowly in the left lane. He attempted to avoid it, but struck it in the rear causing it to flip several times before coming to rest partly in the left lane of Hwy 190’s westbound lane.

The Boudreauxs filed suit, individually and on behalf of their minor daughter, Tracy, against Wimberley and his insurer, State Farm, seeking damages for injuries suffered as a result of this accident. American Isuzu Motors Inc. and Isuzu Motors Inc. were later added as defendants by the Boudreauxs. A motion filed by State Farm to sever the Boudreauxs’ claims against it from those against American Isuzu and Isuzu Motors was granted. Although State Farm requested a jury trial in this matter, the Boudreauxs filed a motion to strike the jury trial, stipulating that each of their claims would not exceed $50,000, exclusive of interests and costs. They further requested the trial court to strike its order severing their claims against State Farm from those against American Isuzu and Isuzu Motors. The trial court granted both of these motions and ordered that the matter proceed as a bench trial. On November 29, 2000, the trial court granted a Partial Judgment of Dismissal dismissing without prejudice the Boudreauxs’ claims against American Isuzu.

Following a trial on the merits, the trial court issued reasons for judgment on July 31, 2001, finding that the sole cause of the accident was Donnie’s failure to drive with his lights on. On August 9, 2001, the Boudreauxs filed a Motion [.qfor Reconsideration or Alternatively for New Trial arguing that the trial court failed to consider the accident report of its accident reconstruction expert, Richard Fox. On August 28, 2001, the trial court rendered judgment in this matter in accordance with his reasons for judgment. On September 27, 2001, the Boudreauxs refiled their Motion for Reconsideration or Alternatively for New Trial. The court minutes indicate that a hearing was held on the motion on November 7, 2001, after which the matter was to be submitted for judgment. On December 18, 2001, the trial court issued further reasons for judgment taking into consideration the report of the accident reconstruction expert, and reapportioning fault to find Donnie sixty percent at fault and Wimberley forty percent at fault. Based on post-trial memoranda, the trial court issued further reasons for judgment on April 2, 2002, awarding $22,279.22 in damages to Donnie, $46,875.45 to Tammy, and $5,050.18 to Tracey. These amounts were reduced by the sixty percent fault attributed to Donnie for an award of $8,911.69 to him, $18,750.18 to Tammy, and $2,020.07 to Tracy.

State Farm appeals suspensively from these judgments. The Boudreauxs have answered this appeal arguing that the trial court erred in finding Donnie sixty percent at fault.

ISSUES

On appeal, State Farm raises three assignments of error. It claims that the trial court erred in granting the Boudreauxs’ Motion for New Trial without finding the existence of any new evidence, in finding comparative fault based on the accident reconstruction expert’s report in light of the testimony of four eye witnesses, and in awarding damages to the Boudreauxs that were not supported by the medical 1 ¿evidence. The Boudreauxs appeal raising three assignments of error. They argue that the trial court erred by not applying the presumption of fault to Wimberley, as a following motorist who rear-ended their pickup, that it erred in finding Donnie comparatively at fault, and in not granting a full new trial.

MOTION FOR NEW TRIAL

In its first assignment of error, State Farm argues that the trial court erred in granting a new trial in favor of the Bou-dreauxs in the absence of any new evidence. The Boudreauxs argue that the trial court should have granted a full new trial in this matter.

Article 1971 of the Louisiana Code of Civil Procedure provides in part, “A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only.” The peremptory grounds under which a new trial may be granted are set out in La.Code Civ.P. art. 1972:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

A new trial may also be granted if there is good grounds for doing so, “except as otherwise provided by law.” La.Code Civ.P. art.1973. A trial court has great discretion in the granting of a new trial, and it will not be reversed on appeal absent |Ba clear abuse of that discretion. Davis v. Coregis Ins. Co., 00-00475 (La.App. 3 Cir. 12/27/00), 789 So.2d 7, writ denied, 01-0292 (La.3/30/01), 788 So.2d 1192. Included in that discretion is the trial court’s authority to define and limit the scope of the new trial. Capitol Nursing Home Inc. v. Nixon, 99-0378 (La.App. 1 Cir. 3/31/00), 764 So.2d 1016, writ denied, 00-1234 (La.6/16/00), 765 So.2d 336; La.Code Civ.P. art.1972.

Although we have no record of the hearing on the motion, the trial court evidently granted the new trial due to its failure to consider Fox’s report since its second reasons for judgment were based solely on that information. In light of its vast discretion, we cannot say that it abused its discretion doing so. See Ruby v. Jaeger, 99-1235 (La.App. 4 Cir. 3/22/00), 759 So.2d 905, writs denied 00-1396-7 (La.6/30/00), 766 So.2d 542, where the trial court’s grant of a new trial was affirmed based on its failure to consider certain legal principles in its original judgment.

We further find no error in the trial court’s refusal to grant a full trial on rehearing. The Boudreauxs’ motion was based solely on the trial court’s failure to consider Fox’s report. Since the report was in evidence, it was certainly within the trial court’s discretion to limit the scope of the new trial to the record before it. Capitol Nursing Home, 764 So.2d 1016. The Boudreauxs achieved their aim of having the report considered. However, there was no need to drag all involved through the time and expense of an encore presentation of evidence already heard. Accordingly, State Farm’s and the Boudreauxs’ assignments of error are without merit.

| ,;FAULT

In its second assignment of error, State Farm argues that the trial court erred in finding Wimberley comparatively at fault in causing this accident. It claims that there is no credible or unbiased testimony or evidence establishing that he did anything to cause the accident. In contrast, the Boudreauxs argue that the trial court erred in failing to apply the presumption of negligence applicable to a following vehicle in a rear-end accident and in finding Donnie comparatively at fault.

After reviewing the trial court’s reasons for judgment, we find that it failed to apply the presumption that Wimberley, the following motorist, was negligent in causing the accident, when he rear-ended the Boudreauxs. Whenever an error of law was made by the trial court, we are required, if possible, to perform a de novo of the entire record and render a judgment on the merits. Bertrand v. Henry, 01-348 (La.App. 3 Cir. 12/19/01), 815 So.2d 868, writ denied, 02-0190 (La.3/28/02), 811 So.2d 945. Since the trial court’s failure to apply the presumption of fault to the driver of the following vehicle is an error of law, we will now conduct a de novo review and render judgment accordingly.

A following motorist is presumed to be at fault in causing a rear-end collision. Mart v. Hill, 505 So.2d 1120 (La.1987). In such instances, the following motorist may free himself of liability by proving that he maintained a proper lookout. Thus, the burden of proof shifts from the plaintiffs to the driver of the following vehicle. Sonnier v. Reed, 532 So.2d 344 (La.App. 3 Cir.1988). In Sonnier, 532 So.2d at 345, the court stated:

Following vehicles have escaped liability for rear-end collisions by establishing that the forward vehicle, encountered in the dark, was |7stalled and unlighted, or that the unpredictable driving of the preceding motorist created a sudden emergency that the following motorist could not reasonably have anticipated. Eubanks [v. Brasseal], 310 So.2d [550,] 553 [ (La.1975) ].

Wimberley testified that he was traveling at fifty-five miles per hour in the left eastbound lane of Hwy 190, on his way from Eunice to New Orleans, when the accident occurred. He stated that he saw flashing lights in his side and rear view mirrors and determined that he needed to yield to the emergency vehicle by changing lanes. In the fraction of the second that it took for him to look into his rear view mirror and then look forward again, he testified that he saw a vehicle ahead of him in the left lane. He stated that he did not perceive any movement from the vehicle or any lights on it, and that he only saw the pickup when it entered the field of his headlights. Wimberley testified that he attempted to avoid the vehicle by cutting his wheel to the right and slamming on his breaks, but his van glanced off the right of the pickup and ended up in the ditch located to the right of the eastbound lane. He further stated that he never saw the headlights of the pickup as it was heading west prior to crossing over and heading east on Hwy 190.

Deputies Martin Mayon and Steven Hi-dalgo, with the St. Landry Parish Sheriffs Office, were en route to a fight at a bar at the time of the accident. Both testified via deposition. Mayon stated that he was in the lead car, with his strobe lights on, with Hidalgo following behind. He stated that both of them were in the left lane of Hwy 190. Mayon testified that the accident occurred when a van he was approaching from the rear attempted to change lanes in order to yield to his vehicle. He stated that he saw the van shake a little bit and then shoot across the road to the right and then off the road. He stated that he was not aware that there was a vehicle |sahead of the van until he saw a puff of white smoke and then a white pickup flipping in the air. He stated that the pickup hit the median, flipped again, and then came to a rest on its left side in the left lane of Hwy 190’s westbound lane. Mayon testified he did not see any lights on the pickup as it was flipping, nor did he see any lights on it after the accident. He stated that he probably would have hit the pickup had the van not done so since the area was dark. Mayon testified that the driver of the van did not put his brakes on prior to hitting the pickup, which implied that he did not see the pickup before the collision occurred.

Hidalgo testified that he did not see the white pickup until the accident occurred and it was flipping off the roadway. He stated that he did not see any lights on the pickup, but that he saw the reflection of the pickup’s side as it came off the road in the headlights of Mayon’s police car. After he stopped his vehicle, Hidalgo testified that he ran to the pickup to help its passengers. He stated that he did not see any lights on the pickup at that time.

Vickie Holmes and Tracy Miller were traveling westbound on Hwy 190 from Baton Rouge to Opelousas, at the time of the accident. Both testified that the accident happened at dusk. Holmes testified that she happened to look towards the eastbound lane and saw the Boudreauxs’ pickup just before it was struck from behind. She stated that she was approximately fifty yards from the pickup at that time. She testified that the pickup appeared to be stopped, and that its headlights were not on. Although she did not see the van hit the pickup, Holmes stated that she saw the pickup start to flip end over end into the median. She stated that she did not see any lights on the pickup as it was flipping.

|flMiller, who was driving the vehicle in which she and Holmes were traveling, stated that she first saw the Boudreauxs’ pickup as it was flipping towards their car, approximately 100 to 150 feet from their vehicle. She stated that she slammed on her brakes and moved her vehicle to the shoulder of the road as the pickup approached them. She testified that the pickup’s headlights were not on as it was flipping towards them, and that none of its lights were on when she approached it on foot in order to render aid to the Bou-dreauxs.

After reviewing this evidence, we find that Wimberley has successfully overcome the presumption that he was negligent in causing this rear-end collision. The evidence presented by him satisfies his burden of proof that he was confronted with a situation involving a non-moving or slowly moving vehicle, without lights, which was located in the “fast” lane of Hwy 190’s eastbound lane. Four independent witnesses testified that they did not see any lights on the Boudreauxs’ pickup. Accordingly, we find that he has overcome the presumption of negligence that he caused this rear-end collision. In so finding, the burden of proof now falls back on the Boudreauxs to prove that Wimberley was at fault in causing this accident.

Donnie testified that he turned out of the Ellises’ driveway into the left westbound lane of Hwy 190, stopped at the crossover, and then pulled into the left lane of the eastbound lanes. He stated that he saw one vehicle quite some distance off before moving into the left lane. In his deposition, he opined that he had traveled approximately two to three hundred feet in the eastbound lane and was shifting from first to second gear when he heard a loud noise from the pickup. At that point, he stated that the pickup stopped pulling; in his deposition, he stated that they were | ^traveling approximately ten miles per hour at that point. Donnie testified that he knew he was not traveling fast enough to make it to the paved shoulder located to the right of the right-hand lane so he tried to steer the pickup into the grassy median located to the left of the left-hand lane. Before he could reach the median, they were struck from behind by Wimberley. Donnie testified that he turned the pickup’s lights on before leaving the Ellises, but he admitted that he did not put the emergency lights on after he heard the noise.

Edward Ellis, Tammy’s stepfather, and Nicholas Rudolph, her brother, both testified that Donnie turned the pickup’s lights on before leaving. Both stated that he had reached the crossover and was heading east when they heard a noise from the pickup. Edward stated that it sounded as though the pickup’s drive shaft had come loose. Rudolph, who was thirteen years old at the time of the accident, stated that Donnie was traveling approximately fifteen miles per hours when he heard the loud popping noise. Edward stated that he saw the lights on the Isuzu as it flipped through the median. Both Edward and Rudolph testified that they never saw any vehicles approaching the Boudreauxs’ pickup from the rear as they headed east on Hwy 190.

The Boudreauxs introduced Fox’s accident reconstruction report into evidence. This report stated the following with regard to the pickup at the time of the accident:

May 16, 1997 — Field Investigation
We traveled to a house on U.S. 190 east of the Town of Port Barre, near the crash site, which Attorney Artall. Donnie Boudreaux was present during our inspection of his pickup. The taillights on Boudreaux’s tuck were already removed from their assemblies, except In that the high mounted brake light was intact.
Examination of the high-mounted brake light bulb yielded inconclusive results. Since it was far removed from the point of force application, we cannot say if it were (sic) working at the time of this crash. However, one tail light, with a broken envelope, showed evidence of possible incandescence during the force application.
We photographed this remnant from several vantage points. Our examination revealed that the lamp was a combination tail light and brake light bulb. The brake light filament wire was missing, completely. However, the tail light filament wire was present, although broken off one post. Stretching of the wire near the broken end may have resulted from stresses suffered during the collision or subsequent rollover after the lamp’s envelope had been. broken.... .... We have concluded that this tail light was more likely than not incandescent during the collision event. Without the other side’s lamp to examine, we cannot say any others were incandescent at that time.

In a February 7, 2001 addendum to this report, Fox states:

We believe that, lighting conditions aside, Mr. Wimberley could have seen and should have seen the stopped pickup soon enough to avoid striking it. His only excuse was the distraction provided by approaching emergency vehicles using visible emergency warning devices. The investigating trooper seems to have come to the same conclusion, as he noted Mr. Wimberley’s condition as “inattentive or distracted.”
Finally, we believe it likely that the tail light we examined in May 1997 was lit at the instant of impact by the Wim-berley van.

After reviewing the record, we find that the Boudreauxs failed to prove by a pre-ponderanee of the evidence that Wimber-ley was at fault in causing the accident. Fox’s report made a conclusory statement that, more likely than not, the one remaining tail light found on the vehicle approximately two months after the accident was lit at the time of impact. His report does not indicate in any manner how he reaches this conclusion from a scientific point of view. It only appears to recant some of the evidence and renders its own factual finding. We find this evidence 1 ^insufficient to carry the Boudreauxs’ burden of proof in light of the testimony from the four independent witnesses, Deputies Mayon and Hidalgo, Holmes and Miller. In light of this finding, we now render judgment dismissing the Boudreauxs’ claims against State Farm. The Bou-dreauxs’ assignments of error concerning fault are found to be without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the new trial is affirmed. The judgment appealed from is reversed and set aside. It is now ordered, adjudged, and decreed that there be judgment herein in favor of the defendants-appellants/appellees, Benjamin Wimberley and State Farm Mutual Automobile Insurance Company, and against the plaintiffs-appellees/appellants, Donnie and Tammy Boudreaux, dismissing the Boudreauxs’ suit against them. The costs of this appeal are to be assessed to the plaintiffs-appel-lees/appellants, Donnie and Tammy Bou-dreaux.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

PETERS, J., concurs in the result.


source: Caselaw Access Project

author: | .DOUCET, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larry DAUZAT.
    No. 02-1373.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      Daniel James Stanford, Eunice, LA, for Appellant Larry Dauzat.
    Renee Y. Roy, Assistant District Attorney, Mansura, LA, for State of Louisiana.
    Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   | .DOUCET, Chief Judge.

Defendant, Larry Dauzat, was indicted on May 14, 2002, for bribery of voters, a violation of La.R.S. 14:119. On June 11, 2002, Defendant entered a plea of not guilty. Thereafter, on August 5, 2002, Defendant waived his right to trial by jury. Trial was held the following day, August 6, 2002; and at the conclusion thereof, Defendant was found guilty of bribery of voters.

On September 24, 2002, Defendant filed a Motion for Post-Judgment Verdict of Acquittal and Alternatively Motion for New Trail. Both motions were denied. The Defendant was sentenced to two years in the custody of the Louisiana Department of Corrections and to pay a fine of one thousand dollars. The sentence of imprisonment was suspended and Defendant was placed on supervised probation for two years with special conditions.

A Motion and Order for Appeal was filed on September 26, 2002.

FACTS:

It is alleged that Defendant offered to give Eve Normand five dollars to influence her vote in the Marksville mayor’s election. According to the official records, maintained by the Secretary of State, the mayor’s race for the City of Marksville was held on April 6, 2002, between candidates John Ed Laborde and Richard Michel.

Eve Normand testified she was on the porch with her great grandson Shawn Lachney when Shawn told her someone was in the yard with signs. Ms. Normand had a Laborde sign in her yard and the Defendant took down the sign and put up a Dr. Michel sign. Ms. Normand then told Defendant to put her sign back up. Ms. Normand testified the Defendant then offered to pick her up on election day. Ms. | ¡Normand told the Defendant she did not need anyone to pick her up. The Defendant then put her sign back in her yard and left. Upon being asked whether the Defendant offered her any money, Ms. Normand stated the following:

Well, he just tell me, he said “If you want to come go on an acting ticket, Ms. Normand.”
He said “I’ll give you Five Dollars ($5).” He said “Dr. Michel will pay Five Dollars ($5).” “If you can’t, on election day I will pick you up and after you vote, I’ll give you your Five Dollars ($5).” I said “No, sir, I ain’t going. I don’t want your money.” And I said, “Just keep on going,” And I said “With the signs.”

Ms. Normand testified the Defendant did not tell her how to vote in exchange for the five dollars. However, Ms. Normand testified she knew the Defendant supported Dr. Michel.

The Defendant testified that he did not offer to pick Ms. Normand up on election day and he did not offer her any money.

ASSIGNMENTS OF ERROR NO. 1 AND NO. 2:

Defendant asserts the following assignments of error:

1) The State did not prove beyond a reasonable doubt nor did the State offer any evidence of an essential element of the offense of La.R.S. 14:119 bribery of voters, that Eve Normand was a registered voter.
2) The State did not prove beyond a reasonable doubt that Larry Dauzat gave or offered to give, directly or indirectly, money to Eve Normand with the intent to influence her vote in the Marksville Mayoral Election in March 2002.

Inasmuch as these assignments of error address the elements of the offense of bribery of voters, they will be discussed together.

In State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98); 720 So.2d 724, 726-27, this court stated as follows:

|3When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559, at 563 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

Defendant was found guilty of bribery of voters. Bribery of voters is governed by La.R.S. 14:119, which provides, in pertinent part:

A. Bribery of voters is the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any general, primary, or special election, or at any convention of a recognized political party, with the intent to influence the voter in the casting of his ballot.
The acceptance of, or the offer to accept, directly or indirectly, any money, or anything of apparent present or prospective value, by any such voters under such circumstances shall also constitute bribery of voters.

Thus, in order to convict the Defendant of bribery of voters, the State must prove: 1) the Defendant gave or offered to give, directly or indirectly, money or anything of apparent, present, or prospective value; 2) to any voter; 3) that the proscribed conduct occurred at any general, primary, or special election, or at any convention of a recognized political party; and 4) the Defendant had the intent to influence the voter in the casting of his ballot. La.R.S. 14:119.

Defendant contends the State did not prove Eve Normand was a registered voter.

“Bribery of voters is the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter.” La.R.S. 1414:119 (emphasis ours).

We note that La.R.S. 14:119 does not define the term voter. Accordingly, the court must determine what is meant by the term voter in that statute.

La.R.S. 14:3 provides, in pertinent part:

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

Blacks Law Dictionary defines a voter as a person who engages in the act of voting; a person who has the qualifications necessary for voting. Blacks Law Dictionary at 1571 (7th edition 1999).

“Black’s Law Dictionary further defines an elector as: ‘A duly qualified voter; one who has a vote in the choice of any officer, a constituent.’ Thus, an elector is a person duly qualified to vote, regardless of whether he has exercised his right to vote or not.” Gossen v. Registrar of Voters, Parish of Acadia, 59 So.2d 461, 463 (La.App. 1 Cir.1952).

In La.Atty. Gen. Op. No. 92-633, an assistant district attorney for St. Tammany Parish sought an opinion regarding the appointment of commissioners by the Parish Police Jury to Hospital Service District No. 2 of St. Tammany Parish. The Act creating the District provided for appointment of two commissioners by the Parish Police Jury and stated the commissioners “shall have been residents and electors of the ward from which they are appointed for one year prior thereto.” The following question was asked: “Does the term ‘elector’ mean a registered voter or does it mean one who is otherwise qualified to vote but has not changed his voter registration?” The Attorney General’s opinion set out the definition of “elector” quoting Gossen, 59 So.2d 461, and concluded:

[A]n elector means a registered voter. LSA-R.S. 18:101(A) provides for the qualifications to register to vote, which include being a citizen of Louisiana, 18 years of age, actual bona fide resident of the state, parish, municipality and precinct in which he offers to register as a voter, and not disfranchised. If a person is qualified to vote, but is not registered, then he can not be considered an elector of the ward for purposes of appointment to the office of commissioner. If said person has not changed his voter registration to his proper ward, he must do so one year prior to being qualified to be appointed to the office of commissioner.

Id.

Thus, we note that the terms voter and elector are synonymous. A voter is one who engages in the act of voting or one who has a vote. In order to vote, one must be registered to vote. Accordingly, a voter is one who is registered to vote. In order to register to vote one must meet the qualifications set out in La.R.S. 18:101.

In order to register to vote, a person must satisfy the following qualifications:

1) be a citizen of Louisiana;
2) at least eighteen years of age or will attain that age on or before the next election;
3) an actual bona fide resident of this state, and the parish, municipality, if any, and precinct in which he offers to register as a voter; and
4) is not disfranchised.

La.R.S. 18:101. Voter registration remains in effect as long as it is not canceled for cause. La.R.S. 18:191. However, a registered voter may not necessarily be a qualified voter. A voter’s qualifications can be challenged pursuant to La.R.S. 18:193 or La.R.S. 18:565. See Dumas v. Jetson, 462 So.2d 266, 270 (La.App. 1 Cir.1984).

On cross examination, the following exchange took place:

Q: Ms. Normand, you didn’t even vote; did you?
IrA: No, I was sick. Nobody could make me go. And listen, let me tell you. I had to walk, and it was a very hot sun. And I didn’t have nobody to bring me. All my children was working, and I had a headache. And I have the headache often, so I wouldn’t go in the sun for nobody. After (UNINTELLIGIBLE) I had to say, and I knew I had to come to Court, I would talk. And thank God I don’t have the headache today, so I’m all right.

The record establishes that no evidence was presented with regard to whether Ms. Normand was registered to vote and/or that she was qualified to vote in the Marksville mayoral election. Accordingly, the State has not met its burden of proving Ms. Normand was a voter, one of the essential elements of the crime charged.

When evidence does not support a conviction, discharge of the defendant is neither necessary nor proper if the evidence supports a conviction for a lesser included offense; rather, the proper procedure is for the court to remand the case for entry of a judgment of guilty of a lesser included offense which is a legislatively authorized responsive verdict.

State v. Bay, 529 So.2d 845, 846 (La.1988), appeal after remand, 567 So.2d 798 (La.App. 3 Cir.1990), writ denied, 572 So.2d 87 (La.1991).

Attempted bribery of voters is a lesser included offense to the charge of bribery of voters. See La.Code.Crim.P. art. 815.

La.R.S. 14:27 provides, in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt....

“A conviction of an attempted offense must rest upon the sufficient proof that the offender actually desired to cause the proscribed criminal consequences to follow his act or failure to act and that the offender committed or omitted an act for the | .¡.purpose and tending directly toward the accomplishing of his object.” State v. Voorhies, 590 So.2d 776, 778 (La.App. 3 Cir.1991).

In State v. Kohl, 524 So.2d 781 (La.App. 3 Cir.1988), a defendant challenged the introduction of other crimes evidence. During trial the defendant was questioned regarding his paying an investigator to have charges against him dropped. This court concluded that although the defendant admitted paying money to the investigator, it did not appear to be evidence of bribery or attempted bribery. The court stated: “The reason that it is not bribery or attempted bribery is that the person whom the money was paid, Mr. Fountain, does not fit any of the categories of persons enumerated in La.R.S. 14:118.” Id. at 786.

As discussed earlier, sufficient evidence was not presented to prove Eve Normand was a voter. Thus, its was not proven that she belonged to the category of persons the statute prohibits one from bribing. Accordingly, the elements of attempted bribery of voters cannot be met.

DISPOSITION:

The Defendant’s conviction and sentence are reversed and set aside. It is ordered that an acquittal be entered on the record.

CONVICTION REVERSED AND SET ASIDE; APPELLANT ACQUITTED.


author:
UGAIDRY, J.
      11 KUHN, Judge,

text:
    John Melvin MITCHELL v. TERREBONNE PARISH SCHOOL BOARD and Gulf Coast Risk Services.
    No. 2002 CA 1021.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.
    Carlton J. Cheramie, Cut Off, Counsel for Plaintiff/Appellant John Melvin Mitchell.
    Bernard F. Levy, Houma, Counsel for Defendanl/Appellee Terrebonne Parish School Board.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   UGAIDRY, J.

This matter comes to us on appeal from a final judgment of the Office of Workers’ Compensation, District 9, sustaining a peremptory exception raising the objection of prescription and dismissing the workers’ compensation claim of John Melvin Mitchell, an employee of the defendant, the Ter-rebonne Parish School Board (the School Board). For the reasons expressed below, the judgment of the workers’ compensation judge must be affirmed.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff, John Melvin Mitchell, was employed by the School Board as a maintenance worker. He was injured while in the course and scope of his employment on or about March 31, 2000, when struck in the face by a falling piece of lumber dislodged by a co-employee from a building being demolished. Mr. Mitchell was subsequently paid temporary total disability compensation benefits from May 22, 2000, through July 31, 2000, the last such payment being made by check on August 1, 2000. A disputed claim for compensation was instituted by Mr. Mitchell on September 14, 2001. On November 13, 2001, Mr. Mitchell was admitted to Terrebonne General Medical Center and underwent a cervical discectomy and fusion. The School Board waived citation and accepted service of the disputed claim on January 3, 2002, and on January 7, 2002, filed a peremptory exception raising the objection of prescription.

The School Board’s exception was heard on February 7, 2002. No testimony was offered by either party. The School Board introduced into Levidence the affidavit of the third-party administrator of its compensation program, relating to the benefits paid through July 31, 2000, a medical excuse from the treating neurosurgeon dated January, 15, 2002, and the operative report and hospital admission form relating to the admission and surgery of November 13, 2001. No evidence of any kind was introduced by Mr. Mitchell, nor did he move to leave the record open for the receipt of evidence after the hearing. The workers’ compensation judge granted the parties leave to submit post-hearing memoranda within seven days of the hearing date. On February 14, 2002, Mr. Mitchell submitted his memorandum, with copies of his treating neurosurgeon’s office notes, the operative report, and the hospital admission summary attached as exhibits. On February 28, 2002, the workers’ compensation judge rendered judgment sustaining the exception and dismissing Mr. Mitchell’s compensation claim with prejudice.

From that judgment, Mr. Mitchell has taken the present appeal.

ASSIGNMENT OF ERROR

Mr. Mitchell assigns as error the workers’ compensation judge’s alleged failure to consider the “developing injury” concept embodied in La. R.S. 23:1209 in determining whether his claim for compensation had prescribed.

STANDARD OF REVIEW

In a workers’ compensation case, as in other civil cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Smith v. Louisiana Department of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132. In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part |4test: (1) The appellate court must find that a reasonable factual basis does not exist in the record for the finding; and (2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

DISCUSSION

Louisiana Revised Statutes 23:1209(A) provides that in the absence of agreement, a claim for workers’ compensation weekly benefits for temporary total disability is prescribed unless a formal claim is filed within one year of the accident, or, if such payments have been made, within one year of the last payment. However, the statute also provides an exception in the case of a “developing injury,” or one which does not develop or manifest itself immediately after the accident, whereby the prescriptive period does not end until one year from the date the injury develops, and in no event later than two years from the accident date. In the case of medical benefits, La. R.S. 23:1209(0 provides that absent agreement, such a claim prescribes one year from the accident unless a formal claim is filed within that time, or, if medical benefits have been paid, such a claim prescribes three years from the last such payment.

Louisiana Revised Statutes 23:1310.5(A)(1) provides that “all the evidence pertaining to each case ... shall be heard by the hearing officer initially assigned to the case,” and that “[u]pon the completion of such hearing ..., the hearing officer shall make such order, decision or award as is proper, just, and equitable in the matter.” Louisiana Revised Statutes 23:1317(A) provides that, in hearing “the evidence that may be presented by each party,” the workers’ compensation judge or hearing officer “shall not |Ebe bound by technical rules of evidence or procedure ..., but all findings of fact must be based upon competent evidence.” (Our emphasis.)

Louisiana Code of Civil Procedure Article 931 provides that at the hearing of a peremptory exception, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” (Our emphasis.) Generally, in the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and those alleged facts are accepted as true. Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1st Cir.1991).

Here, the plaintiffs disputed claim form, filed on September 14, 2001, sets forth allegations that Mr. Mitchell was injured March 31, 2000, while working at Bayou Black Elementary School, that he was provided medical attention by a number of named physicians, that no medical treatment was authorized by the employer, and that surgery recommended by his treating neurosurgeon was not authorized. On its face, his claim was prescribed. When a workers’ compensation claim is prescribed on its face, the burden is upon the claimant to show that the running of prescription was suspended or interrupted in some manner. Jonise v. Bologna Brothers, 01-3230, p. 6 (La.6/21/02), 820 So.2d 460, 464. Thus, the burden of proof shifted to Mr. Mitchell to establish that his claim was not prescribed.

The School Board’s evidence demonstrated that Mr. Mitchell last received weekly indemnity benefits on August 1, 2000. No testimony or exhibits were offered into evidence by Mr. Mitchell in opposition to that evidence, or relating to any payment of medical benefits or the date of onset of disability to perform his employment duties. Under the particular facts and procedural posture of this case, the workers’ compensation judge could not properly consider Mr. Mitchell’s post-hearing memorandum of law and | fithe medical reports attached to it as competent evidence of the development of disability after August 1, 2000, since the reports were not actually introduced into evidence. Even though evidence which might be inadmissible in a normal civil proceeding may be considered “competent evidence” in a workers’ compensation proceeding, such evidence must still be properly “presented” or admitted in order to be considered and to form part of the record. Wynder v. Royal Ford Lincoln Mercury, Inc., 98-616, pp. 7-8 (La.App. 3rd Cir.10/28/98), 721 So.2d 1001, 1005. In the case cited, the court held that depositions attached to the plaintiffs motion for new trial after summary judgment but not admitted into evidence at the summary judgment hearing could not properly be considered by either the workers’ compensation judge or the appellate court. See also Tranum, 581 So.2d at 1026 (memoranda and attached exhibits filed in the trial court but not introduced into evidence were not part of the appeal record and could not be considered).

Louisiana Code of Civil Procedure Article 934 provides as follows:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.

In the context of an objection of prescription, the jurisprudence has interpreted the foregoing provisions to mean that where a plaintiffs compensation claim is prescribed on its face, and the plaintiff has the opportunity but fails to offer any evidence at the hearing of a peremptory exception that his claim was filed timely, he has failed to adequately establish that amendment of his claim might remove the grounds of the objection. Comardelle v. Jeandron Chevrolet, Inc., 449 So.2d 601, 605 (La.App.7 1st Cir.1984); Cook v. Con-Trux Construction Company, 499 So.2d 169, 173 (La.App. 2nd Cir.1986); Johnson v. Highlands Insurance Company, 394 So.2d 818, 819 (La.App. 4th Cir.1981). Accordingly, the judgment sustaining the exception was proper and should not have afforded Mr. Mitchell the opportunity to amend his claim under La. C.C.P. art. 934.

Because Mr. Mitchell did not meet his burden of showing that the applicable prescriptive periods were interrupted, we must conclude that the workers’ compensation judge did not err in determining that his claim was prescribed and in dismissing it. See Blanchard v. Tulane Medical Center, 97-1111 (La.App. 5th Cir.3/11/98), 708 So.2d 1232. Accordingly, the judgment sustaining the School Board’s peremptory exception is affirmed.

AFFIRMED.

KUHN, J., dissents in part and assigns reasons.

11 KUHN, Judge,

dissenting in part.

The majority correctly affirms the trial court’s ruling sustaining the exception of prescription. However, that conclusion does not require dismissal of Mr. Mitchell’s claim at this stage in the proceedings. Based on the allegations set forth in Mr. Mitchell’s opposition memo, it appears that Mr. Mitchell may be able to amend his disputed claim form to set forth a claim based on the concept of a “developing injury.” La. R.S. 23:1209(A). Accordingly, Mr. Mitchell should be afforded the opportunity to amend his disputed claim form. La. C.C.P. art. 934; Whitnell v. Menville, 540 So.2d 304, 309 (La.1989); Boudreaux v. Angelo Iafrate Construction, 02-0992 (La.App. 1st Cir.2/14/03) — So.2d -, 2003 WL 343178; Freeman, Gyer, Hemelt & Associates v. Estate of McKnight, 578 So.2d 996 (La.App. 4th Cir.1991).

Accordingly, I dissent from that portion of the majority opinion which affirms the dismissal of Mr. Mitchell’s compensation claim.

      . The actual date of injury is disputed. The disputed claim for compensation form initially filed listed the date as March 31, 2000. In the parties’ post-hearing memoranda, however, the date was given as March 29, 2000. In the briefs to this court, Mr. Mitchell again asserted the date as March 29, 2000, while the School Board used the original date of March 31, 2000. This minor discrepancy does not affect the basis of this opinion, however.

      . The School Board’s memorandum in support of its exception was filed on February 6, 2002, the day prior to the hearing.

      . Louisiana Revised Statutes 23:1209(C), unlike 23:1209(A), does not provide for the "developing injury” exception to the commencement of prescription.

      . Cf. Boudreaux v. Angelo Iafrate Construction, 02-0992 (La.App. 1st Cir.2/14/03), - So.2d -, 2003 WL 343178. (Where the plaintiff affirmatively alleged in his disputed claim form that injury resulting from accident did not manifest itself until almost fifteen months later, but did not introduce evidence supporting the developing injury doctrine at the hearing on a peremptory exception of prescription, the judgment sustaining the exception as to indemnity benefits but not affording the plaintiff the opportunity to amend his claim to provide more specific facts regarding the development of disability would be reversed and the case remanded to afford him that opportunity, pursuant to La. C.C.P. art. 934.)


author: LGAIDRY, J.

text:
    ENERQUEST OIL AND GAS, LLC v. Honorable Philip N. ASPRODITES, Commissioner of Conservation and Assistant Secretary of Natural Resources of the State of Louisiana.
    No. 2002 CA 0822.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.
    Rehearing Denied May 13, 2003.

      John M. Shuey, Jr., Shreveport, Counsel for Plaintiff/Appellant EnerQuest Oil and Gas, LLC.
    W. Stephen Walker, Baton Rouge, Counsel for Defendani/Appellee Honorable Philip N. Asprodites, Commissioner of Conservation and Assistant Secretary of the Department of Natural Resources, State of Louisiana.
    David L. Smelley, Shreveport, Counsel for Defendant Will-Drill Production Co., Inc.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   LGAIDRY, J.

We are called upon in this appeal to determine the issue of whether the Louisiana Commissioner of Conservation (the Commissioner), who directs the Office of Conservation of the state Department of Natural Resources, has the inherent authority to remove a previously designated operator of a drilling or production unit and to designate a new operator in the exercise of its statutory mandate to prevent waste of the state’s mineral resources. After review of the evidence and consideration of the parties’ contentions, we fully agree with the observation of the Commissioner stated in his brief that “[t]he actions of the trial court provide a textbook case in how the courts should conduct a judicial review of the Commissioner’s orders.” We further adopt our Factual and Procedural Background and Law and Discussion from the trial court’s written reasons for judgment, as set forth below with slight modifications and additions, and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

By Order No. 1074-B-l, effective February 14, 1989, the Commissioner of Conservation created a pattern of drilling and production units for the exploration and production of gas and condensate from an underground pool known as the Cotton Valley Formation, Reservoir A, in the McKenzie Field, Claiborne Parish, Louisiana. Two of these units were designated as CV RA SUJ and CV RA SUK.

The Order also designated Reynolds Drilling Company, Inc., as unit operator for CV RA SUK, and the King No. 1 Well as the unit well for this unit. Later in 1989, Reynolds was named unit operator of the King No. 2|aWell for CV RA SUJ. In April 1993, the unit operator of CV RA SUK and CV RA SUJ, and of the King Nos. 1 and 2 was changed to Whiting Petroleum Corporation pursuant to amended drilling permits issued by the Commissioner. At this time, the King Nos. 1 and 2 were producing gas and condensate from the Cotton Valley Formation, Reservoir A. Thereafter, both the King Nos. 1 and 2 ceased producing, and in November 1999 the wells, and the interests in oil and gas leases covering acreage within CV RA SUJ and CV RA SUK, were put up for sale by auction.

In connection with this auction, potential bidders were furnished property data sheets, which detailed the status of the wells and leases. The property data sheets provided that: (a) neither well was then producing; and (b) both wells were shown as being “Shut in — Evaluate to P & A” (the term P & A is an abbreviation for plug and abandon). Further, the data sheets contained the following caution with respect to each well:

NOTE! THESE LEASES IN THIS UNIT MAY BE EXPIRED DUE TO EXTENDED CESSATION OF PRODUCTION. BUYER WILL ASSUME PLUGGING OBLIGATIONS. BUYER SHOULD ATTRIBUTE NO VALUE TO THIS WELL.

EnerQuest Oil & Gas, LLC (EnerQuest) was the successful bidder at the auction and an assignment was subsequently delivered to EnerQuest covering the properties being offered for sale, including the King Nos. 1 and 2. Thereafter, effective November 1, 1999, EnerQuest was designated by the Commissioner as the operator of units CV RA SUK and CV RA SUJ, and the King Nos. 1 and 2.

Because the King Nos. 1 and 2 had not produced for a significant period of time, certain of the mineral leases assigned to EnerQuest covering acreage within CV RA SUJ and CV RA SUK expired according to their terms; and in March and May 2000, EnerQuest executed instruments | ¿releasing the leases. Will-Drill Resources, Inc. (Will-Drill) and Johnson Energy Resources, L.L.C. (Johnson Energy) acquired new leases covering the lands within CV RA SUJ and CV RA SUK. Thereafter, the leasehold positions for the CV RA SUJ were as follows: Will-Drill 87.85%; Johnson Energy .77%; Ener-Quest 6.25%; unleased mineral interests 5.18%. The leasehold positions in the CV RA SUK were as follows: Will-Drill 63.58%; Johnson Energy 35.98%; Ener-Quest .49%.

In June 2000, the Office of Conservation issued work permits to EnerQuest for the two wells in Sand Units K and J. However, no operations were conducted after the work permits were issued. Thereafter, Will-Drill requested the Commissioner to administratively designate Will-Drill as operator of the King Nos. 1 and 2, and the units CV RA SUK and CV RA SUJ, so it could make attempts to restore the wells in the Cotton Valley Formation. Will-Drill’s request for administrative approval of an operator change was opposed by EnerQuest; therefore, pursuant to Office of Conservation policy, Will-Drill requested a public hearing to consider its request to be designated as operator of the wells and units.

The Commissioner made the following findings:

(6) That the evidence indicates that there is no dispute over the fact that Will-Drill Production Co., Inc. is currently the majority working interest owner in the unit designated CV RA SUJ and in the unit designated CV RA SUK.
(7) That the evidence indicates that the wells... hereof would be capable of producing hydrocarbons in commercial quantities from the Cotton Valley Formation, Reservoir A, if reworking operations were to be performed on such wells; and that, therefore, the plugging of such wells would constitute waste.
(8) That Will-Drill Production Co., Inc. is prepared to proceed with reworking operations on the wells ....
| k(9) That EnerQuest Oil & Gas, L.L.C. did not present any evidence or make any assertion that it intends to place the wells... hereof back in production, and therefore, if the present application were denied EnerQuest Oil & Gas, L.L.C., would immediately be required to plug and abandon the wells; however, this would result in the other owners being deprived of the correlative rights, including the opportunity to recover their just and equitable share of the oil and gas without unnecessary expense.
(10) That in view of these findings, and the evidence in the record of the hearing held herein, it would be reasonable and in the interest of conservation, by preventing waste and the drilling of unnecessary wells, to designate Will-Drill Production Co., Inc., as operator of record of the wells ....

Pursuant to these findings, the Commissioner ordered:

(1) Will-Drill Production Co., Inc. is hereby designated operator of record of the CV RA SUJ; King No. 2 (SN 210817) and of the CV RA SUK; King No. 1 (SN 208486), in the McKenzie Field, Claiborne Parish, Louisiana.
(2) Nothing herein shall be deemed to impair or alter any contractual rights between any party or parties, including any claim for damages and/or compensation.

EnerQuest filed a petition for judicial review on April 27, 2001. Will-Drill intervened in the proceedings in support of the Commissioner’s Order. The hearing of the matter was held on October 22, 2001. The trial court’s judgment affirming the Commissioner’s Order was signed on November 1, 2001. The trial court issued its written reasons for judgment on December 5, 2001. EnerQuest thereupon instituted this appeal.

ASSIGNMENTS OF ERROR

EnerQuest contends the trial court erred in concluding that the Commissioner acted within his constitutional and statutory authority in issuing the Order at issue, removing it as operator of the involved units and wells, and further committed manifest error in affirming the Commissioner’s order, which was based upon speculative “economic” opinion testimony.

| ^STANDARD OF REVIEW

The standard for judicial review of an order of the Commissioner is set forth in detail in La. R.S. 30:12(B). Generally, the decision of the Commissioner embodied in such an order may be reversed only if the decision prejudices substantial rights because it violates constitutional or statutory law; exceeds the Office of Conservation’s statutory authority; is made upon lawful procedure; involves other legal error; involves an arbitrary or capricious abuse of discretion; or is manifestly erroneous based on the record of the Commissioner’s hearing.

The Commissioner’s findings of fact are entitled to great weight by a reviewing court and, unless manifestly erroneous or clearly wrong, should not be reversed. Save Ourselves, Inc. v. Louisiana Environmental Control Comm., 452 So.2d 1152, 1158 (La.1984). Furthermore, in reviewing the conclusions and exercises of agency discretion by the Commissioner, the reviewing court must apply the arbitrariness test, and the party challenging the Commissioner’s decision must make a clear showing that the administrative action was arbitrary and capricious. Id. at 1160.

LAW AND DISCUSSION

The central issue here is whether, under the particular facts of this case, the Commissioner of Conservation can issue an order removing and replacing an existing unit operator.

Pursuant to the Conservation Act, the Commissioner has jurisdiction and authority over all persons and property necessary to enforce effectively the provisions of the Conservation Law and all other laws relating to the conservation of oil and gas. La. R.S. 30:4(A). The Commissioner has the authority to make any reasonable rule, regulation and/or order that is necessary to properly administer and enforce the Conservation Law. La. R.S. 30:4(C). Amoco Production Company v. Thompson, 516 So.2d 376, 383 (La.App. 1st Cir.1987), writs denied, 520 So.2d 118 (La.1988). Louisiana Revised Statutes 30:4(B) further provides that “[t]he commissioner shall make such inquiries as he thinks proper to determine whether or not waste, over which he has jurisdiction, exists or is imminent. In the exercise of this power the commissioner has the authority to collect data; to make investigations and inspections; to examine properties, leases, papers, books, and records ... and to take any action as reasonably appears to him to be necessary to enforce this Chapter.”

Furthermore, the Supreme Court noted in Hunt Oil Co. v. Batchelor, 93-3144, p. 6 (La.10/17/94), 644 So.2d 191, 196, that “the commissioner has the power to establish compulsory units and designate unit operators therefor. La. R.S. 30:9(B) and 30:10(A).” The First Circuit, in Amoco, stated that “a unit operator is designated to drill and produce the unit well. The Order establishing the compulsory unit deprives all of the owners in the unit, except the unit operator, of the right to explore for minerals and reduce them to possession. In this context, the unit operator has become the managing owner for the purposes of exploration and production,” Amoco, 516 So.2d at 392.

At the hearing, Will-Drill maintained that: it was the majority leasehold owner in the units; the two wells were currently off production; the current owner, Ener-Quest, has made no attempt to restore the wells to production; and it is prepared to restore the wells to production, and therefore, would like to be designated as operator of the two units.

Will-Drill submitted documentary and testimonial evidence to the Commissioner which purported to demonstrate that (1) Will-Drill’s leasehold interest in Sand Unit K is 87.85%, and 63.53% in Sand Unit J; (2) |sEnérQuest became operator of the wells in November 1999; (3) EnerQuest has not conducted any production from the wells since it became operator; (4) a consulting petroleum engineer for Will-Drill testified that Will-Drill is prepared to conduct operations if designated operator of the units; (5) the estimated recoverable reserves from the King No. 1 Well was $498,000.00, to drill a new well to recover these reserves would cost an estimated $750,000.00, and to rework the well to recover such reserves would cost approximately $175,000.00; and (6) the value of estimated recoveiable reserves from the King No. 2 Well was $447,300.00, the estimated cost to drill a new well to recover these reserves was $750,000.00, and the estimated cost to rework the well was $187,000.00. EnerQuest did not present any evidence to refute Will-Drill’s assertion that it was the current majority leasehold owner, nor did it present any evidence to contest Will-Drill’s assertion that production could be reestablished if the wells were reworked.

Upon its review of the record, the trial court found that it contained substantial evidence to support the Commissioner’s findings of fact. Furthermore, Order No. 1074-1, designating Will-Drill as operator of record, was not arbitrary and capricious. Therefore, and for the reasons it expressed below, the trial court affirmed the Commissioner’s order.

EnerQuest argues that the Commissioner did not have the authority to determine the validity of the mineral leases. However, the record indicates that the Commissioner merely took into consideration which party had a majority interest in the two units—he did not make a determination as to who had good and merchantable title to the property as plaintiff suggests. It is realistic to assume that the party with a 63.53% interest in one unit, and 87.85% in another, would have more incentive than a party with only a .49% laworking interest in one, and a 6.25% working interest in another to rework the wells. The fact that the Commissioner considered the leases as a factor in making his determination is of no consequence.

EnerQuest argues that the Commissioner went beyond his statutory authority by considering the “rework” of an existing well. Plaintiff argues that the word “rework” is absent from the language in La. R.S. 30:4, 30:9, and 30:10. Louisiana Revised Statutes 30:9 specifically deals with the establishment of drilling units. Louisiana Revised Statutes 30:10 relates to drilling unit agreements and pooling orders. EnerQuest contends that the statutes are limited to the drilling of new wells, as opposed to existing wells.

The argument is misplaced. The Commissioner’s authority in the instant matter is derived from La. R.S. 30:4. The Commissioner is charged with the duty of preventing waste. The fact that reserves were capable of being recovered if the wells were reworked was a finding by the Commissioner that highlighted the wells’ potential of becoming waste if EnerQuest was not removed as operator of the wells. Reworking the existing wells presented a viable means of rescuing the wells from being plugged, which in turn would require the drilling of new wells—the end result being higher, unnecessary costs for the other interested owners. The evidence regarding the reworking of the wells presented an economically prudent option of resurrecting the wells to a producing status.

EnerQuest further argues that “waste,” as defined by the Conservation Act, is limited to “the waste of reservoir energy.” It asserts that the plugging of wells does not constitute “waste.”

Louisiana Revised Statutes 30:3(1) defines “waste” as follows:

(1) “Waste”, in addition to its ordinary meaning, means “physical waste” as that term is generally understood in the oil and gas industry. It includes:
|in(a) the inefficient, excessive, or improper use or dissipation of reservoir energy; and the location, spacing, drilling, equipping, operating, or producing of an oil or gas well in a manner which results, or tends to result, in reducing the quantity of oil or gas ultimately recoverable from a pool; and
(b) the inefficient storing of oil; the producing of oil or gas from a pool in excess of transportation or marketing facilities or of reasonable market demand; and the locating, spacing, drilling, equipping, operating, or producing of an oil or gas well in a manner causing, or tending to cause, unnecessary or excessive surface loss or destruction of oil or gas.

Clearly, the definition, in its ordinary meaning, encompasses the instant situation. EnerQuest was an operator who was not operating, which in turn is wasteful to the other interested owners who are not recovering anything from a well that has the potential to produce recoverable reserves if reworked.

Louisiana Revised Statutes 30:10(A)(l)(a) provides the mandatory terms and conditions of all pooling orders. The statute states that they “shall be upon terms and conditions that are just and reasonable and that will afford the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool "without unnecessary expense.”

We agree with the Commissioner’s contention that subsequent orders should follow the same principle. In the instant matter, the owners in the unit would be deprived of their “just and equitable share” if the wells were plugged, which in turn would require the drilling of new wells, which would result in “unnecessary expense.”

In brief, plaintiff contends that there is no law requiring that unproductive wells be plugged, however, plaintiff is mistaken. Louisiana Revised Statutes 30:4(C)(l)(a)(iv) provides that the Commissioner has authority to make rules and regulations:

InTo require the plugging of each dry and abandoned well and the closure of associated pits, the removal of equipment, structures, and trash, and to otherwise require a general site cleanup of such dry and abandoned wells.

At the hearing on December 5, 2001, the Commissioner was informed of the true nature of the wells. The King No. 1 Well had been off production since October 1997, and the King No. 2 Well had been off production since February 1999. Additionally, EnerQuest did not appear to have any intentions of conducting production operations on the two wells. As a result of the uncontroverted facts being presented to the Commissioner, he clearly had the authority to order the plugging of the wells.

EnerQuest argues, in its brief, that the Commissioner’s reliance on the testimony of Will-Drill’s expert witness, Mr. McGin-nis, is manifestly erroneous. In making his findings, Mr. McGinnis relied on public records from the Office of Conservation. Counsel for EnerQuest attempted to discredit the findings of Mr. McGinnis on cross-examination by revealing that Mr. McGinnis had never visited the site, did not include the cost to purchase the wells in his calculations, and he was not very familiar with the operational characteristics of the site. EnerQuest argues that it is not attacking the credibility of Mr. McGinnis, but rather what he stated regarding the economic success of the rework; however, the questions posed by counsel for EnerQuest appear to only question Mr. McGinnis’s credibility. En-erQuest did not present any evidence to contradict the economic calculations of Mr. McGinnis.

Lastly, plaintiff argues that the Commissioner effectively expropriated the well-bores and casing when it designated Will-Drill as operator. However, the Commissioner merely granted Will-Drill the right to operate the wells. The district court of proper venue and jurisdiction is the | ^appropriate authority to determine the ownership issues in relation to the well-bores and casing.

CONCLUSION

Louisiana Revised Statutes 30:9 gives the Commissioner the authority to designate unit operators. Accordingly, the trial court found that the Commissioner’s decision to remove EnerQuest as operator and designate Will-Drill as operator was fully supported by the record, and was a reasonable exercise of his authority. We agree. The authority and responsibility for conserving Louisiana’s oil and gas resources are virtually entirely vested in the office of the Commissioner of Conservation. Hunt Oil Company v. Batchelor, 93-3144 at p. 6, 644 So.2d at 197. Such authority and responsibility logically and necessarily must extend to the not uncommon practice of reworking of existing wells, if the Commissioner is to effectively fulfill his primary duty to prevent waste of our state’s mineral resources.

As to EnerQuest’s argument that the Commissioner’s Order amounts to an unconstitutional taking of its property “right of use” of its wellbores and casing, we additionally note that our law is replete with examples of reasonable restrictions on the right of use of owners of property, where such use might deprive or inhibit other persons in the exercise of their rights, or adversely affect the public interest. See, e.g., La. C.C. art. 667; La. R.S. 30:32(B). See also Nunez v. Wainoco Oil & Gas Company, 488 So.2d 955 (La.1986). The Commissioner’s Order at issue here clearly does not violate EnerQuest’s right of due process relating to its property interest. Contractual relations and property rights of persons must yield to a proper exercise of the police power, and it is on this principle that oil and gas conservation laws are constitutionally valid. Smith v. Holt, 223 La. 821, 829—30, 67 So.2d 93, 95 (1953). As stated previously, however, the narrow issues of ownership and compensation relating to the wellbores and casing are not before us, and are for the district court with proper jurisdiction and venue. We address only the constitutional propriety of the Commissioner’s action. Accordingly, the trial court’s judgment is not manifestly erroneous.

DECREE

The trial court’s judgment is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, EnerQuest Oil & Gas, LLC.

AFFIRMED.

KUHN, J., concurs.

      . At the time the Order at issue was issued and when this action was instituted, the Hon-, orable Philip N. Asprodites was the Commissioner of Conservation. Shortly after the trial court’s judgment was signed, Mr. Asprodites left the Office of Conservation and the Honorable Felix J. Boudreaux was appointed as Commissioner.

      . Order No. 1074-1, State of Louisiana, Office of Conservation, dated February 28, 2001.

      . Id.