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    Jon K. ROBERTS, Plaintiff-Appellant, v. D & J CONSTRUCTION COMPANY and Gray Insurance Company, Defendants-Appellees.
    No. 42,510-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2007.

      Law Offices of Michael, S. Coyle by William A. Jones, Jr., Michael S. Coyle, Rushton, for Appellant.
    Theus, Grisham, Davis & Leigh, LLP by Phillip D. Myers, Monroe, for Appellees.
    Before STEWART, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

L Claimant Jon Roberts appeals from a judgment of the Office of Workers’ Compensation (“OWC”) dismissing his demand for compensation benefits. For the reasons stated herein, we affirm.

FACTS

After his employer denied his claim for indemnity and medical benefits, Jon Roberts filed a formal claim for workers’ compensation on June 17, 2005, seeking those benefits plus penalties and attorney fees. The employer answered the claim, denying that there was an accident and further alleging that Mr. Roberts had forfeited his right to benefits by falsely denying a prior injury. Mr. Roberts filed an amended claim for compensation in June 2006 asking additionally for mileage reimbursement; the employer again denied the occurrence of an accident and asserted fraud on the part of the claimant. The matter went to trial before the OWC on July 20, 2006; and, on December 29, 2006, the OWC dismissed the employee’s claim.

Mr. Roberts worked as a laborer for D & J Construction (“D & J”). Mr. Roberts has an eighth-grade education and has worked as a mechanic or laborer most of his life. On April 13, 2005, Mr. Roberts was working for D & J at a jobsite near U.S. Highway 167 in Bernice, Louisiana. He and fellow workers rode together in a crew truck to and from the job site. According to Mr. Roberts:

I’d used a sledgehammer all that day, bending over steel rods about — about five, six inches or so tall, about as big around as my finger, with a sledgehammer bending them over in a drain system. And I was hot and tired. I sat the hammer down at the — run it might-near all day on both sides of the road. And jumped in [crew leader Charles “Little Brother”] Scott’s truck, 12went up the street, went up the road there a little piece. He said, “Jon, jump out and get that road closing sign.” I said, “Okay.” So I got out and walked over— over there and reached down on the bottom of the road closing sign down toward the bottom of it, and it had three or four, like eighty-pound sacks of sand on it. I pulled up, and when I pulled up I heard something snap in my back two or three times.

Mr. Roberts said that he immediately told his co-workers what had happened:

I told them that I had something wrong with me, that I didn’t feel right — something wasn’t right with me.

Charles Scott, who was driving the truck, said “Not to my knowledge” when asked if Mr. Roberts had told him that day at the job site that he had been hurt picking up a sign. Mr. Scott also testified that Mr. Roberts did not tell him of any injury later that evening when the crew returned to the D & J office. Mr. Scott said that he would have made a report of the incident had Mr. Roberts reported it.

Mr. Roberts did not go to work the next day, April 14, but instead, went to E.A. Conway Medical Center in Monroe. A hospital record in the form of a letter dated April 18, 2005, states that Mr. Roberts was at E.A. Conway on April 14, 2005, “to schedule an appointment with the Orthopedics Clinic.”

Mr. Scott testified that, when Mr. Roberts did not show up for work, he called him to find out why he did not come in. Mr. Roberts did not have a telephone in his house, but his next-door neighbor, Carolyn King (who is also Mr. Roberts’ sister), had a telephone that Mr. Roberts used for his calls. Mr. Scott reached Mr. Roberts’ brother-in-law on the morning of April 14, but was unable to speak with him.

| oMr. Roberts testified that he finally spoke to Mr. Scott on the phone later in the day on April 14. According to Mr. Roberts:

I told [Scott] that I had went to Charity Hospital and I pulled — I pulled some stuff loose in my back, and you know — I was letting him know. I asked him what I — what he thought I needed to do. He said, “You need to call Jerry Lynn.”

Jerry Lynn Hackworth was the D & J superintendent in charge of work crews that included Mr. Roberts’ crew. Mr. Roberts’ sister testified that she heard Mr. Roberts tell Mr. Scott “that he had gotten hurt and that was why he was not at work.”

Mr. Scott initially testified that he spoke with Mr. Roberts on April 14, but later explained that he had actually spoken with Mr. Roberts on Friday, April 15. Mr. Scott further testified that he did not at that time ask Mr. Roberts what was wrong with him. Mr. Scott testified that Mr. Roberts told him that “something was wrong” with him, but testified that Mr. Roberts did not tell him that Mr. Roberts had gone to the hospital.

Mr. Roberts testified that, after speaking to Mr. Scott, he then called Mr. Hack-worth:

I told Mr. Hackworth that I had went to E.A. Conway, down there at the charity hospital, and that I pulled something loose in my back, and something wasn’t right with me.

Mr. Roberts said that Mr. Hackworth responded this way:

He turned around and told me-he said, “Well, I’ve got to decide if I’m going to fire you or if I’m going to let you go,” like that. He said, “I’ll call you back in a couple of days.”

Mr. Hackworth said that he talked to Mr. Roberts on April 15, not April 14, and that Mr. Roberts said that “he had something wrong with him” and was going to the hospital. Mr. Hackworth said he did not ask Mr. Roberts what |4was wrong with him and said that Mr. Roberts did not volunteer any information. Mr. Hack-worth had been at the jobsite all day on April 13, 2005, and testified that Mr. Roberts never said anything about being hurt that day.

Mr. Roberts further testified that Mr. Hackworth called him back on April 15:

He called me back ..., said something about he talked with a Mr. Jerry Wyatt, or something to that effect, and said, “They say I can’t just lay you off, that I’ve got to fire you. So I think I’m just going to go that route.” [He said], “We’re just going to fire you.”

Mr. Hackworth agreed that he discharged Mr. Roberts from employment, but asserted that it was a “disciplinary layoff” because Mr. Roberts had not shown up for work. Mr. Hackworth recalled that D & J’s company policy is to terminate an employee when the employee has two unexcused absences in one year, and he recalled that Mr. Roberts had several unexcused absences in the year before he was fired. D & J is also an at-will employer. Mr. Hackworth recalled the absences because, at another jobsite, he often picked Mr. Roberts up to drive him to work and “a couple of times,” he did not show up at the pick-up point. After informing Mr. Roberts that he was going to be discharged, Mr. Hackworth called the company’s human relations director, Pam Shockley, for guidance and also contacted the company’s chief financial officer, Terry Baugh. After conferring with those people, Mr. Hackworth called Mr. Roberts back and fired him.

| fjAfter he had been fired, Mr. Roberts attended his previously scheduled appointment at E.A. Conway Medical Center on April 18, 2005. The medical record from that date states in part:

Chief Complaint: C/O chronic back pain — wants pain shot
Back problems off & on since '98 accident This incident since he “pulled something” Tuesday moving signs (road closure signs)

The doctor administered anti-inflammatory medicine, muscle relaxants and painkillers and made Mr. Roberts an appointment to return in a month.

Mr. Roberts came to D & J’s office on April 20, 2005, to get his last check. There, he spoke with Ms. Shockley, who had prepared the formal termination documents for D & J. Ms. Shockley testified that she put no reason on the documents for Mr. Roberts’ termination. She testified:

[H]e was telling me that he thought he hurt his back. And at that point, I said, “Jon, I don’t deal with that. That needs to be reported to your supervisor and the forms filled out.”

Later that night, Ms. Shockley called Mr. Roberts at home and informed him that he had the right to draw unemployment benefits. She testified that she had never done this before, but said that she probably contacted Mr. Roberts after she learned from Mr. Hackworth that the company did not plan to oppose any claim that Mr. Roberts might file.

On May 18, 2005, Mr. Roberts returned to E.A. Conway for his appointment. The medical record from his visit with Dr. George Belchic on that date reflects, in part:

RCC: LBP
“Something snapped in my back 13 April 05 was swinging a sledge hammer @ work for D & J Construction”
“Had tailbone twisted in a wreck (car)” “No relation to present problem”

Dr. Belchic gave Mr. Roberts a steroid shot and an anti-inflammatory shot. An x-ray of Mr. Roberts’ spine showed normal features, and no pathology was found to explain his complaints of pain. A physical therapist recommended that he do physical therapy in the form of stretching exercises.

Both the April 18 and May 18, 2005 medical reports refer to an auto accident in which Mr. Roberts had injured his back. He testified that the accident happened in Florida; he said that a speeding van crashed into his truck and nearly pushed his truck off a bridge into the water. Mr. Roberts further explained that his doctor in Florida restricted him only to light duty work because of his injury.

Whether Mr. Roberts reported this pri- or injury and the restriction to D & J was a contested issue of fact. When he first went to work for D & J in February 2004, Mr. Roberts underwent a brief interview and completed a second-injury fund questionnaire. Mr. Roberts testified that, when he spoke with D & J employee Deanna Graves at the interview, he told Ms. Graves of his work restrictions and that she wrote “light duty only holding the stop sign flagging” on his interview form. Ms. Graves did not remember whether Mr. Roberts had told her this, but another employee present at the time, Daniel Walker, testified by deposition that he heard Mr. Roberts tell 17Ms. Graves of his back problems and that Mr. Roberts said he needed to be kept on light duty because of his bad back. Walker also testified that Mr. Roberts told him in mid-April 2005 that he had hurt his back at work while “using a sledgehammer.”

The original questionnaire was not available because D & J had destroyed all of the company’s original questionnaires after the company’s insurance adjuster, Steven LeBlane, discovered that the typeface on the questionnaires was too small. The replacement questionnaire, executed later, was introduced into evidence. The company had all of its employees execute a new second-injury fund questionnaire on November 15, 2004, at a companywide banquet. On this second questionnaire, there is a section in the beginning asking the employee whether he currently has, or previously had, any of a list of numerous medical conditions; one of the choices is “neck / back injury.” Mr. Roberts did not check any of the preexisting conditions and, apart from the date and his name / signature, did not write anything else on the two-page multiple question form except his height, weight and social security number. Mr. Roberts said that he only completed the form in this manner because Mr. Scott told him to “just do what I do and sign it.” Mr. Scott testified that he did not recall telling Mr. Roberts to do that.

Mr. Roberts continued to seek medical care for his back pain in June and December 2005, but D & J refused to pay for the treatment. Dr. Belchic found no objective reasons for Mr. Roberts’ complaints of pain at those appointments, and Mr. Roberts did not keep his appointments for the | ¿recommended physical therapy or followup appointments with Dr. Belchic. Dr. Belchic was of the opinion, at least at that time, that Mr. Roberts was able to return to his old job.

As previously stated, Mr. Roberts filed a formal claim for compensation in June 2005. Mr. LeBlane was also the claims representative who handled Mr. Roberts’ claim and made the decision to deny the claim. In making that decision, Mr. Le-Blanc interviewed Mr. Hackworth, Mr. Scott and Ms. Batson, and also interviewed Mr. Roberts. Mr. LeBlane concluded that Mr. Roberts had not been injured at work and that he had never reported any prior back injury to the company.

A portion of Mr. LeBlanc’s testimony at trial gave rise to a controversy about the employer’s position on the occurrence of an accident. The following is an exchange between the claimant’s attorney, Mr. Le-Blanc and the court:

Q (Claimant’s attorney): Let’s cut to the chase here. You didn’t deny the claim because you’re denying an accident. Correct?
A: Initially we did, and then we — we probably, at that point, turned our attention to 1208.1.
Q: Are you still maintaining that there was no accident?
A: I — the problem I have is that ...
Q: No, no, no. Answer my question. Are you still ...
A: The problem I have is that the people that Mr. Roberts told me were going to corroborate his version of the incident, when |9I spoke to them, they did not. They unequivocally denied. You know, it was like night and day, and that was a problem for me.
Q (By the court): Now answer his question with a yes or no. Are you still denying that there was an occurrence of an accident?
A: No.
Q (By the court): You’re not denying it?
A: (negative nod)
Q (By the court): Okay.
Q (By claimant’s attorney): So the sole basis for denying it—
A: I mean, it sounds like he has reported in the medical record that there was an incident — I think he’s also reported elsewhere, which is also problematic to me as I sit here, that it occurred while he was swinging a sledge.
Q: Both of those are accidents, aren’t they?
A: Yes.
Q: So we’re not disputing an accident?
A: I think — I think that — I mean, he reported it. I can’t sit here and tell you we’re not disputing an accident, because the — the way he reported it and the people he relied on as witnesses that would corroborate what he said and who he reported it to, unequivocally denied it.
Q: Okay. I’m going to leave this alone.
A: I guess whether or not there was an accident—
Q: You are unsure—
A: — is a legal question.
Q: — as to the grounds—
A: I would just say, Judge, that whether or not an accident occurred is going to be a legal conclusion that you come to linwith all the evidence that’s presented before you. And if you come to that, I don’t have a problem with it. My concern is that the — when I took a statement from him and he told me what had occurred and who he reported it to, when I took statements from those people it didn’t — it didn’t corroborate it.
Q (By the court): All right, so what’s the answer to the question, because now you’ve given two different answers? Are you disputing that an accident occurred? That’s a yes or no.
A: On the face of it, probably not.
Q (By the court): Okay.
Q (By the claimant’s attorney): So that means the only grounds to deny this claim is 1208.1 fraud. Right?
A: Yes.
Q: That’s the real reason you denied the claim?
A: It was, I think motivator for me, yes.

On cross-examination, the employer’s attorney had this exchange with Mr. Le-Blanc:

Q (Employer’s attorney): Mr. Le-Blanc, you were sitting here in the courtroom and you heard Charles Scott testify that Mr. Roberts did not tell him about hurting himself by picking up a sign on April 13, 2005, either at the worksite or at the shop and you heard Mr. Roberts testify just the exact opposite. Can you tell me why, after hearing that testimony that today you’re not disputing that Mr. Roberts had an accident?
A: I think that based on the medical reports that they showed to me and his statement to the — to—-in there. I still had a question in my mind that there was an accident, and I guess the — it would only be based on, you know, what’s the medical — the medical reports. But the fact that there are factual questions on — from the people that were supposed to corroborate his statement that an accident occurred, it does — it did form a basis for me that there was a question of whether an accident occurred.

On redirect examination, Mr. LeBlanc explained further:

InQ (Claimant’s attorney): As I understand your testimony, you’re not disputing the fact of the accident or the injury?
A: I have serious questions in my mind about it. And what you — ... you simply showed me that medical report, and if I’m going to look at the medical report on the face of it, and that’s the only thing you look at, then yes, you would be led to believe there was an accident. But if you talk to the other witnesses and follow-up with who he says he reported it to, and if they’re to be believed, then you have serious questions about whether an accident occurred. So, do I have questions? Yes.

The court took the matter under advisement. On October 28, 2006, the court announced its ruling and reasons for ruling. The court noted that the medical examinations and images that had been done found no objective cause for Mr. Roberts’ complaints of pain and summarized the testimony of the fact witnesses. The court stated:

Claimant sought medical treatment following the alleged injury. But according to medical records of E.A. Conway Hospital, claimant wanted a pain shot for a chronic back pain. He reported having back problems since a 1998 automobile accident.

The court found that Mr. Roberts’ varied descriptions of how the accident happened and the absence of corroboration from witnesses whom he claimed to have told of his injury

discredited him and ... cast serious doubt on his version of the accident. Furthermore, his testimony is not corroborated by the circumstances following the alleged incident. He did not report an injury and medical treatment was sought for a chronic condition.

The court also concluded that the medical evidence did not entitle Mr. Roberts to any indemnity benefits as his treating physician in 2005 placed no limitation on his ability to return to work. Finally, the court concluded that Mr. Roberts’ failure to answer the second-injury | ^questionnaire truthfully by informing the company of his 1998 back injury was fatal to his claim. From the judgment dismissing his claim in accordance with these reasons, Mr. Roberts now appeals.

DISCUSSION

Assignment of Error Number 1: Steve LeBlanc, who made the decision to deny Roberts’ claim, testified under oath, in response to questions by opposing counsel and the Trial Judge, that he no longer denied that Roberts had suffered a workplace accident or injury; therefore, it was reversible error for the WCJ to disregard that admission and 'rule that no accident occurred.

Assignment of Error Number 2: Roberts went to E.A. Conway for treatment the morning after his accident; his claims of injury were corroborated by other witnesses; and he actually received medical treatment for a back injury; therefore, it was reversible error for the WCJ to rule that no accident or injury occurred.

Citing La. C.C. art. 1853 and Tabeo Exploration, Inc. v. Tadlock Pipe & Equipment, Inc., 617 So.2d 606 (La.App. 3d. Cir.1993), unit denied, 625 So.2d 1057 (La.1993), Mr. Roberts first argues that the trial court erred by failing to take the testimony of Mr. LeBlanc as an admission or judicial confession by the employer that he had suffered an accident at work. Mr. Roberts also argues that the trial court was manifestly erroneous in finding that he failed to prove the occurrence of an accident.

In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). An “accident” is defined as an

unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

haLa. R.S. 23:1021(1).

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident and (2) the worker’s testimony is chrroborated by the circumstances following the alleged incident. Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends or by medical evidence. Id.

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” Id., citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Id.

La. C.C. art. 1853 provides:
A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

Whether Mr. Roberts suffered an accident is a question of fact. Several D & J employees were present at the jobsite at the time when 114Mr. Roberts allegedly had his accident, and two of these employees other than Mr. Roberts testified at trial. Only Mr. Roberts, however, testified that anything unusual happened while he was moving the temporary sign, and both of the other employees present denied that Mr. Roberts contemporaneously told them that he had injured himself.

Mr. LeBlanc was not present at the job site when this alleged accident occurred. He had no personal knowledge of whether Mr. Roberts had been injured while moving a sign, or while using a sledgehammer or in any other way. Mr. LeBlanc reviewed documents and interviewed witnesses after the incident in furtherance of processing Mr. Roberts’ claim for compensation benefits. Mr. LeBlanc’s knowledge of the incident was only derivative; and his testimony about whether Mr. Roberts suffered an accident on April 13, 2005, gave his impression of what the evidence and medical records showed. The occurrence of an accident was a disputed fact with direct evidence on both sides of that question, and Mr. LeBlanc’s opinion testimony does not constitute an admission or judicial confession under those circumstances.

Moreover, Mr. LeBlanc’s testimony on this point was confused and contradictory. At times, the witness seemed to be agreeing that the evidence proved the occurrence of an accident; at other times, he expressed his doubt that the evidence was sufficient. He explained that his decision to deny Mr. Roberts’ claim was ultimately based in Mr. Roberts’ answers to the second-injury questionnaire, not on the occurrence of an accident. Even if Mr. LeBlanc was an eyewitness to the events on April 13, 2005, his hstestimony would likely be insufficient to constitute a judicial confession because of its internal contradiction.

The remaining question is whether the trial court was manifestly erroneous or clearly wrong in finding that Mr. Roberts failed to prove the occurrence of an accident.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-elearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact-finder’s finding, is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840 (La.1989) (citations omitted).

In this court’s review of the trial court’s reasons for judgment, we observe that the trial court did not recite that the April 18, 2005 medical record from E.A. Conway contained the sentence, “This incident since he ‘pulled something’ Tuesday moving signs (road closure signs).” Instead, the trial court observed that the hospital records showed that Mr. Roberts sought treatment “for a chronic back pain” that he suffered since his 1998 car accident. The trial court, however, also noted that, “on other occasions claimant described his injury as occurring due to the lifting of a heavy sign.” Given that the trial court apparently was aware of Mr. Roberts’ initial claim, |ir,the initial discrepancy between its reasons and the April 18, 2005 record is insufficient to undermine confidence in the trial court’s finding of fact.

This case presented to the trial court a difficult question of fact, with contradictory evidence on both sides of the issue and evidence suggesting various degrees of bias or self-interest in the evidence presented by both sides. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that thé finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one, and, where there are two permissible views of the evidence, the fact finder’s choice cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

After a review of the entire record, including the medical records and other exhibits, we cannot say that the trial court’s choice to reject Mr. Roberts’ claim that he had an accident at work was manifestly erroneous. Even so, there are troubling aspects about the evidence, in particular the evidence that tends to show that Mr. Roberts went to the hospital for treatment on April 14, 2005, instead of going to work and that he did so before he had been fired. In addition, the circumstances and timing surrounding his termination were unusual. In the end, however, the lack of corroboration for Mr. Roberts’ version of events, his differing statements to doctors and his co-employee, Mr. Walker, about the origin of 117his injury and the absence of any medical evidence to support the occurrence of any new injury were sufficient evidence, viewed in the light of the record as a whole, for the trial court to reject Mr. Roberts’ testimony.

Accordingly, because the trial court found that Mr. Roberts failed to prove that he suffered an accident at work and because that finding is not manifestly erroneous, his claim for workers’ compensation benefits must fail.

Assignment of Error Number 3: It is D & J’s burden of proving each element of fraud under La. R.S. 23:1208.1; D & J’s form is ambiguous and Roberts’ failure to complete- the form, in the absence of any effort by D & J to clarify the ambiguity, fails to meet the requirements of 23:1208.1 as stated by the Louisiana Supreme Court; therefore, it was reversible error for the WCJ to rule that Roberts’failure to complete the form was fraud.

Assignment of Error Number ⅛: Roberts told D & J he could only work light duty when he was hired, and that D & J wrote down that information. D & J destroyed the original second injury fund questionnaire Roberts filled out when he was hired; therefore, it was reversible error for the WCJ not to apply an evidentiary presumption in favor of Roberts based on D & J’s spoliation of evidence.

Although this court’s approval of the finding of the trial court that the claimant failed to prove that he suffered an accident is sufficient to affirm the judgment of the trial court, we, nevertheless, will address the claimant’s other assignments of error. These assignments concern the effect of the absence of the original second-injury questionnaire and the trial court’s conclusion that Mr. Roberts had forfeited his right to benefits because, on the second form, Mr. Roberts failed to inform the company of his prior back injury.

La. R.S. 23:1208.1 provides:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions |1sand the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

The form that Mr. Roberts completed in November 2004 bears the required bold-type warning of forfeiture for failure to answer truthfully. Mr. Roberts admitted that he suffered a back injury in 1998 — the same type of injury he claims to have suffered in 2005 — but he argues (1) that he informed the company of that injury on his original form, now missing because the company destroyed it, and (2) that the form is ambiguous because it only asks for affirmative statements of injury and not denials of injury.

Forfeiture is a harsh remedy; therefore, statutory forfeiture provisions such as La. R.S. 23:1208.1 must be strictly construed. Nabors Drilling, USA v. Davis, 03-0136 (La.10/21/03), 857 So.2d 407. In Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, the supreme court considered an employer’s defense under La. R.S. 23:1208.1 to a compensation claim made by an employee who had executed a second-injury questionnaire. In that case, the claimant suffered traumatic arthritis and fluid on his right knee while working for a former employer. That condition cleared up after a week, and the worker resumed his normal [iaduties. About two years later, the worker went to work for- a new employer and filled out a second-injury fund questionnaire. The form asked the worker if he suffered from a variety of ailments, but this form included check boxes for both “yes” and “no” answers. The employee originally marked “yes” where the form asked about knee injuries, but later marked out his answer; he also left blank the question asking about arthritis. A few months later, the employee injured his right knee while working for the new employer, and he reinjured the same knee a few months later.

The worker made a claim for compensation benefits, but the employer denied the claim, citing La. R.S. 23:1208.1. The OWC agreed and dismissed the worker’s claim even though the court found that the worker minimized his prior knee problems because they were minor to him. The court of appeal found no manifest error, but the supreme court reversed. The court first observed:

La. R.S. 23:1208.1 thus provides for forfeiture under narrow circumstances: There must be an untruthful statement; prejudice to the employer; and compliance with the notice requirements of the statute. Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. An employer has the burden of proving each element within the statute. The lack of any one of the elements is fatal to an employer’s avoidance of liability. Mullins v. Courtney Equipment, 95-989 (La.App. 3 Cir. 1/31/96), 670 So.2d 329.

The court then observed:

A survey of cases indicates that an employee/applicant had failed to answer truthfully only when he clearly indicated “no” on the employer’s questionnaire, denying the existence of a known medical condition. (Citations omitted.) There has been no case in which an employee has scratched out a “no” answer, thereby revealing ambiguities, as in the present case.

|2nIn addition to other issues, the court addressed the ambiguity of the form in that case in light of the employer’s burden of proof:

Claimant’s interpretation that the question was asking about chronic conditions, coupled with a questionnaire not narrowly tailored to meet [the employer’s] need to be informed about PPDs, renders [the employer’s] questionnaire ambiguous. Ambiguous forms are to be construed against the employer when considering whether the employee knowingly answered untruthfully.
The record shows that claimant did not answer the question concerning arthritis and scratched out a “No” answer to the question about knee problems. On the face of the questionnaire, claimant’s answers are not untruthful, but rather ambiguous. A defendant employer is charged with proving each element entitling it to reimbursement.
Therefore, ambiguous answers cannot satisfy an employer’s burden of proving knowledge regarding the presence of a PPD. Absent an employer’s attempt to clarify ambiguous answers, an employer fails to prove that claimant has knowingly made an untruthful answer for which forfeiture is justified.
In response to claimant’s ambiguous answers, [the employer] did nothing. It never questioned claimant regarding those ambiguous answers, nor did it seek to clarify the ambiguity and thereby inform itself as to the existence of a PPD as required by La.R.S. 23:1378. Therefore, [the employer] did not reasonably attempt to satisfy its statutory knowledge requirement. Under the circumstances of this case, where an ambiguous questionnaire is coupled with an employee’s ambiguous response, [the employer] has failed to prove that claimant knowingly failed to answer the questionnaire truthfully.

In this case, we perceive no ambiguity in the form as it applies to the instant situation. The form asks the employee to “check if you currently have or previously had the following medical conditions” and provides a line for the employee to place a check mark next to each condition or illness. Mr. Roberts placed no check by the “Neck /Back Injury” question, so there was no ambiguous answer on this form to prompt the employer to further inquire into Mr. Roberts’ medical history. Contrast Bossier Electric v. Cubley, 35,852 (La.App.2d Cir.6/14/02), 821 So.2d 685, where the claimant answered the questions truthfully, but the questions were found to be ambiguous as they related to the employee’s prior medical treatment.

Likewise, the evidence did not suggest that the employer had an improper motive for destroying its old second-injury forms and replacing them with new forms; according to the testimony, the old forms were not in compliance with La. R.S. 23:1208.1. Noncompliant forms may not provide an employer with the protection afforded them by the legislature, see Wilkes v. Ivan Smith Furniture Co., 39,-096 (La.App.2d Cir.12/22/04), 890 So.2d 780, and there is no particular reason for an employer to keep a form that is not in compliance with the law.

In regard to the relationship in this case between the new injury and the prior injury, there was insufficient evidence of any injury to the employee in which to make a determination of the relationship between his prior injury and any new injury. The medical records, however, indicate that, on April 18, 2005, Mr. Roberts told his doctor of his prior injury when he complained of his back pain, thereby indicating that the complaints were similar in location. On this record, the trial court was not manifestly erroneous in concluding that the employer proved that Mr. Roberts was not entitled to benefits by operation of La. R.S. 23:1208.1.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee v. Shamichael TILLMAN, Defendant-Appellant.
    No. 42,688-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2007.
    Baton Rouge Capital, Conflict Office, by David William Price, Kyla Michelle Blanchard-Romanach, for Appellant.
    Paul Joseph Carmouche, District Attorney, Lea R. Hall, Jr., Tommy Jan Johnson, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   DREW, J.

| Shamichael Tillman was indicted on two counts of first degree murder for his involvement in a Shreveport drive-by shooting. The indictment was later amended to two counts of second degree murder. A jury found Tillman not guilty on both counts.

Tillman filed a motion to expunge pursuant to La. R.S. 44:9(B), which provides:

B. (1) Any person who has been arrested for the violation of a felony offense or who has been arrested for a violation of R.S. 14:34.2, R.S. 14:34.3, or R.S. 14:37 may make a written motion to the district court for the parish in which he was arrested for the expungement of the arrest record if:
(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash; and
(b) The record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution.
(2) If, after a contradictory hearing with the district attorney and the arresting law enforcement agency, the court finds that the mover is entitled to the relief sought for the above reasons, it shall order all law enforcement agencies to expunge the record of the same in accordance herewith. However, nothing in this Paragraph shall limit or impede the authority under law to consider prior arrests or convictions in pursuing prosecution under multiple offender provisions or impede the investigation of any law enforcement official'seeking to ascertain or confirm the qualifications of any person for any privilege or license authorized by law.

There were three others involved in the drive-by shooting, all of whom were convicted in separate trials. The trial judge who presided over Tillman’s trial, as well as the trials of the others, denied the motion for expungement. In particular, the trial judge was concerned that a law enforcement officer having future contact with Tillman should be aware of the charges. Tillman appealed. We are constrained to reverse.

| .DISCUSSION

The trial judge was validly concerned that law enforcement officers dealing with Tillman in the future should know about his arrest on the murder charges. However, the Legislature has set up a mechanism for law enforcement officers to have access to this knowledge.

La. R.S. 44:9(G) defines expungement as the “removal of a record from public access but does not mean destruction of the record.” It further provides that although an expunged record is confidential, it remains available for use by:

[L]aw enforcement agencies, criminal justice agencies, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, the Louisiana State Board of Examiners of Psychologists, the Emergency Medical Services Certification Commission, the Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, or the Louisiana Supreme Court Committee on Bar Admissions.

The Department of Public Safety and Corrections is permitted to maintain, for investigative purposes only, a confidential, nonpublic record of an expunged arrest and disposition. La. R.S. 44:9(F). The information in that record “may be released, upon specific request therefor and on a confidential basis, to any law enforcement agency [or] criminal justice agency[,]” and the receiving law enforcement or criminal justice agency is charged with maintaining the confidentiality of such record. Id.

The Bureau of Criminal Identification and Information (“Bureau”) was created within the Department of Public Safety. La. R.S. 15:577. La. R.S. 15:578(A), which sets forth the functions of the Bureau, reads in part, with our emphasis added:

|„(1) To establish and maintain a central repository of criminal history record information and to adopt regulations and procedures to prescribe the terms and conditions under which the Department of Insurance, section on fraud, and the Department of Revenue, office of alcohol and tobacco control, shall have direct access to this information and adopt regulations and procedures to prescribe the terms and conditions under which other eligible individuals or agencies may gain access to such information.
(4) To establish, maintain, and regulate a modern system of telecommunication and data processing for the efficient collection, storage, and rapid transmission of criminal history record information and relevant statistics maintained by the bureau. To serve qualified agencies concerned with the administration of criminal justice throughout the state.

In State v. M.K.O., 36,524 (La.App.2d Cir.12/18/02), 833 So.2d 1265, the State dismissed a charge of felony simple criminal damage to property against M.K.O. after he completed a diversion program. M.K.O.’s motion for expungement was not opposed by the State; the arresting agency did not oppose it either, but entered a general objection. The trial court denied the motion, finding that the arrest record had substantive probative value as a prior act for subsequent prosecution.

Reversing the trial court, this court noted in M.K.O. that Louisiana courts have relied on the presumption of innocence and the principle of fundamental fairness to conclude there is entitlement to expungement of an arrest record when there has been a dismissal of the offense. This court further noted that there was nothing in the record to support the trial court’s conclusion that M.K.O.’s arrest had substantive probative value as a prior act in a future prosecution. In the context of an ex-pungement under La. R.S. |444:9(B), we can find no reason why an acquittal should be treated any differently than a dismissal.

Subsection B of La. R.S. 44:9 was repealed in 1995, but a new subsection B, in its current form, was enacted in 1996. Three years later, Subsection G, which distinguishes between “expungement” and “destruction,” was added to La. R.S. 44:9. This court recognized in State v. M.K.O., supra, that the definition of expungement in Subsection G would make it difficult to show under Subsection B that the proposed expungement must be prevented. We further observe that Subsection G essentially renders meaningless the barrier to expungement found in Subsection B(l)(b). Because the expunged record of arrest is still maintained confidentially by the Department of Public Safety and remains available to law enforcement agencies, then it can still be presented as a prior act in a subsequent prosecution. The expungement merely means that the record of the arrest is hidden from the public eye.

CONCLUSION

For the foregoing reasons, and with ap-pellee to bear the appeal costs of $169.50, we reverse the trial court and remand to the trial court for the entry of an order of expungement.

REVERSED and REMANDED.

      . In 1994, the Louisiana Supreme Court noted the distinction between “destruction” and "expungement.” State v. Savoie, 92-1586 (La.5/23/94), 637 So.2d 408.

      . An exception to expungement when the record of arrest and prosecution has "substantial probative value as a prior act for any subsequent prosecution.”

      .Today’s technology severely diminishes the effectiveness of many expungements. For example, if an arrest has been reported in a newspaper, it would not be difficult to discover the arrest through an Internet search using a common search engine.


text:
    STATE of Louisiana, Appellee v. Larry Gerard HALL, Appellant.
    No. 42,767-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 21, 2007.
    Louisiana Appellate Project by Mary Constance Hanes, for Appellant.
    Paul Joseph Carmouche, District Attorney, William Jacob Edwards, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

L Larry Gerard Hall was adjudicated a fourth felony offender and sentenced to the statutory minimum of 20 years at hard labor without benefit of probation or suspension of sentence. He now appeals, asserting that the trial court erred in failing to order a presentence investigation report and in failing to conduct an evidentiary hearing so that he could show that he is the exceptional defendant for whom departure from the mandatory minimum 20-year sentence is appropriate.

We affirm the sentence ordered by the learned trial court.

FACTS

As more fully detailed in our previous opinion in State v. Hall, 40,824 (La.App.2d Cir.4/26/06), 929 So.2d 281, Hall was convicted in a bench trial of unauthorized entry of a place of business, La. R.S. 14:62.4, adjudicated a fourth felony habitual offender, and sentenced to eight years at hard labor, without benefit of probation or suspension of sentence. We affirmed in all respects, but the Louisiana Supreme Court reversed in a per curiam, opinion. State v. Hall, 2006-1358 (La.1/12/07), 946 So.2d 173. The supreme court stated:

The record at sentencing does not show clearly and convincingly that the mandatory minimum sentence for a fourth offender required by La. R.S. 15:529.1(A)(l)(c)(i) is unconstitutional as applied to defendant in the present case. The trial court erred in failing to afford the presumption of constitutionality to the mandatory minimum sentence required by the Habitual Offender statute, and the court of appeal erred in deferring to the sentencing discretion of the judge on a record devoid of facts and circumstances demonstrating that defendant is an exceptional victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the crime. See State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. Defendant’s sentence of eight years at|2hard labor is vacated and this case is remanded to the district court for resentencing. The district court may deem it appropriate to order a presentence investigation, see La.C.Cr.P. art. 875(A), and to hold a hearing on defendant’s motion to deviate from the minimum term mandated by La. R.S. 15:529.1(A)(l)(c)(i) before imposing sentence.

Id., 946 So.2d at 173-4.

On remand, the district court held a hearing at which Hall and his counsel were present for resentencing. Hall’s counsel again made the argument that Hall’s previous crimes were not violent crimes and that there should be a downward deviation from the mandatory minimum 20-year sentence. The trial court stated that it still believed the appropriate sentence to be eight years at hard labor without benefit of probation or suspension of sentence, considering that Hall’s previous criminal history consisted of property crimes and no violent crimes. After noting Hall’s age of 55, however, the court then stated:

This matter came back to me from the Supreme Court and at this time the Court sentences Mr. Hall to 20 years at hard labor without benefit of probation or suspension of sentence, which is the minimum sentence under the fourth felony habitual offender law.

At no time did defense counsel complain of the absence of a presentence investigation, attempt to introduce any evidence, or attempt to make any argument, other than that noted above, in favor of a downward departure.

Hall’s counsel filed a motion to reconsider the sentence and deviate from the mandatory sentence alleged to be constitutionally excessive and grossly out of proportion to the seriousness of the offense. The specific reasons set forth in the motion again were that even though Hall, who was |s55 years old, had been convicted as a fourth felony offender, he had been convicted predominantly of property offenses and not of any violent offense. The trial court denied the motion without a hearing. This appeal followed.

DISCUSSION

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the defendant was sentenced to 30 months at hard labor despite the mandatory minimum sentence of 20 years for a fourth felony offender under the Habitual Offender Law. The supreme court vacated and remanded, and in doing so, stated:

A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.
A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or pri- or offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. La. R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under La. R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.

| /Citations omitted.) Id., 97-1906 at pp. 7-8, 709 So.2d at 676.

In State v. Armstrong, 32,279 (La. App.2d Cir.9/22/99), 743 So.2d 284, writ denied, 99-3151 (La.4/7/00), 759 So.2d 92, Armstrong was convicted of second degree murder and sentenced to the mandatory life sentence. One of Armstrong’s assignments of error on appeal was that the trial court erred in failing to order a presen-tence investigation report in order to obtain more information from collateral sources about him and, thus, make a fully informed decision regarding his sentence. We held that a presentence investigation may be ordered by the trial court, but such an investigation is not mandatory. This court noted that the record did not reflect that a presentence investigation had been requested prior to the date of sentencing and that no objection was made at the time of the sentencing. This court also stated that a presentence investigation would not have abrogated the legal obligation of the judge to impose the mandatory sentence.

Hall argues that the trial court erred in failing to order a presentence investigation report and in failing to conduct an evidentiary hearing to allow him the opportunity to prove that he is an exceptional defendant for whom departure from the mandatory minimum 20-year sentence is appropriate. However, as in Armstrong, supra, the record does not reflect either that a presentence investigation was requested before the date of sentencing, or that an objection was made at the time of sentencing. Furthermore, we observe that the trial court in no way prohibited defendant from making any |5argument in favor of a downward departure and gave no indication that the court would not have allowed evidence to be presented in favor of any such argument. We also observe that the only factor argued by defendant, aside perhaps from his age, was the non-violent nature of his prior crimes, a factor that the supreme court in Johnson, supra, rejected as a sole basis for rebutting the presumption of constitutionality necessary for departing from the minimum sentence.

CONCLUSION

From our review of this record, we detect:

• no abuse of discretion in the trial court’s decision not to order a presen-tence investigation, especially when none was requested; and

• no reason why the court should have taken evidence, especially when none was offered and when the only argument was that proffered before, ie., that his many offenses were non-violent property crimes.

We previously affirmed the defendant’s conviction. We now AFFIRM his sentence.

      . See La. C. Cr. P. art. 875, which states that the court may order the Department of Public Safety and Corrections to make a presentence investigation.


author: PEATROSS, J.

text:
    Laura Kelly HANCOCK, Plaintiff/Appellee v. John M. TURNER, Defendant/Appellant. John M. Turner, Plaintiff/Appellant v. Fern Turner and Laura Kelly Hancock, Defendants/Appellees.
    Nos. 42,690-CA, 42,691-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 21, 2007.

      James A. Hobbs, West Monroe, for John M. Turner.
    Dimos, Brown, Erskine, et al. by Donald R. Brown, Alexandria, for Fern Turner & Laura Kelly Hancock.
    Before PEATROSS, MOORE & LOLLEY, JJ.
   PEATROSS, J.

hln these consolidated cases, the trial court ordered specific performance of an agreement by John Turner (“John”) to sell two acres of land (“the property”) to Laura Kelly Hancock (“Laura”). John appeals. For the reasons stated herein, we affirm.

FACTS

Laura was a longtime friend of Fern Turner (“Fern”), who was married to John during the time the events pertinent to this matter occurred. Through this friendship with Fern, Laura met John and the three maintained a friendship for many years. During those years, John’s health deteriorated and, according to the testimony of Fern, she was interested in having Laura live near them for support and help in caring for John. At the time, John’s son, Don, was living in a mobile home on a 2-acre portion of a larger 20-acre tract of land owned by John. Laura testified that she expressed an interest in purchasing the 2-acre mobile home site if Don ever moved. A short time later, Don and his wife moved their mobile home to another site and Laura and John executed the agreement for John to convey and Laura to purchase the 2-acre tract that is at issue in this appeal.

Laura contacted a notary, Barbara Bas-more, and requested that she draft a document to memorialize the agreement of the parties to buy and sell the property. Ms. Basmore testified that she did not have a legal description of the property, but she did her best to draft a document that would suffice as an agreement to sell the 2-acre tract. The resulting document, entitled “Affidavit,” was executed on April 30, 2003, and was signed by Laura, John and two witnesses and a notary. The Affidavit states that Laura “has agreed |2to pay $2,000.00 for two acers (sic) of land in an undivided tract of land owned by John M. Turner.” At the time of execution of the Affidavit, Laura gave John a check for $2,000. The check was made payable to John and Fern and was deposited into a joint checking account owned by John and Fern. Fern testified that the money was used for general living expenses for both her and John. At no time was the $2,000 refunded to Laura. The Affidavit further states that, at a “later date,” the land would be properly surveyed and a deed executed.

Significantly, within a couple of weeks of execution of the Affidavit, Laura moved a mobile home onto the property, connected it to the existing utilities and began living in the mobile home. Laura testified that John and Fern visited Laura at her home on more than one occasion and there was never any opposition to her living there. This was confirmed by the testimony of Fern.

In accordance with the Affidavit, Laura had the parcel surveyed by James W. Braswell and Associates in November 2003. John, however, refused to execute a deed to the property. Instead, John issued a “notice of eviction” to Laura in January 2004. Laura then filed suit for specific performance and the actions were consolidated. John argued that the description in the document was insufficient to support the sale and, alternatively, that the price was lesionary. Laura then filed an amended petition arguing alternatively that, in the event the sale was deemed invalid, she was entitled to recovery of the purchase price and expenses incurred based on her detrimental reliance on the terms of the Affidavit.

|RAs previously stated, the trial court held that the Affidavit was valid and ordered specific performance of the sale. The trial court found that, with all the evidence adduced, including testimony and the survey, there was no confusion as to the exact property that was intended to be sold to Laura. In doing so, the court found the testimony of Laura and Fern to be credible along with the testimony of the witnesses to the signing of the agreement. The trial court then rejected John’s alternative argument of lesion. In reaching this conclusion, the court found that an appraisal submitted by John to support his lesion argument was remote in time and that, in fact, the pertinent two acres were not included in the appraisal. This appeal ensued.

DISCUSSION

La. C.C. art. 2462 allows for specific performance of a contract to sell immov-ables when the agreement is in writing, signed by the parties and specifies the thing and price. This case turns on how specific the description of the property must be and whether parol evidence is admissible to make the determination. Review of the jurisprudence confirms that such determinations are very fact intensive and each case must be scrutinized and determined on its specific facts.

In City Bank and Trust of Shreveport v. Scott, 575 So.2d 872 (La.App. 2d Cir.1991), this court explained:

When the law requires a contract to be in written form, the contract may not be proved by testimony ... unless the written instrument has been destroyed, lost, or stolen. CC Art. 1832. Revision Comments-1984 state that Art. 1832 is new, but does not change the law, the principles and substance of | ¿which are derived from former CC Arts. 2275, 2278(4), 2279 and 2280.
This court has noted that there are cases in which parol or extrinsic evidence may be admitted to aid and identify immovable property described in a written contract to sell. Parol evidence has not been allowed, however, to wholly identify the immovable. Parol has been allowed only where the courts have found that there was “sufficient body” in the initial written description so as to leave the title to immovable property “resting substantially on writing and not essentially on parol.” Jackson v. Harris, 18 La.App. 484, 136 So. 166, 169 (La.App. 2d Cir.1931).

The rule in Louisiana finds its origin in the case of Kernan v. Baham, 45 La. Ann. 799, 13 So. 155 (1893), and was restated in City Bank, supra:

To aid and establish identity of a defective or ambiguous description of an immovable property in a written contract, parol evidence is admissible only where the written, but defective, description distinguishes the property from other properties so as to allow the conclusion that the mutual or common intent of the parties to the writing was to deal with the particular property and not another property of the same kind or quantity.

Further, there should be sufficient substance in the written description in question so as to leave title to the immovable resting substantially on the contents of the writing and not on parol evidence. City Bank, supra.

In City Bank, the court held that the description of “vacant land, 21 acres, Gilliam, Louisiana,” was too general to support the admission of parol evidence to establish what land was the object of the agreement. The court in City Bank provided a thorough and instructive discussion of the line of cases examining the sufficiency of descriptions of immovable property contained in agreements to sell. In its reasons for holding that parol was not admissible in City Bank, the court identified factors that, if present, support the reliance on parol to aid in the determination of the immovable property Rat issue. Most significant to the present case is allowing the prospective purchaser to take possession of the property.

In addition, in Wilson v. Head, 97-922 (La.App. 3d Cir.2/4/98), 707 So.2d 127, at issue was a buy-sell agreement describing the subject property as “the property located at Municipal Address: ., City Many, Parish Sabine, Louisiana, Legal description 4.87 acres on Hwy 6, see attached plat....” The Wilson court reviewed City Bank and allowed extrinsic evidence to further describe the property intended to be sold, stating that “[w]hile not entirely clear, this description is sufficient to allow the conclusion that the mutual or common intent of the parties to the writing was to deal with the particular property....”

After reviewing the discussion and cases cited in City Bank, we find the facts presented in the case sub judice to be distinguishable from the facts of City Bank and other cases which held that par-ol evidence was not admissible to aid in the description of immovable property. In that regard, we find that several facts in the instant case support the admission of parol evidence to further define the property. First, the Affidavit provided a means for exact identification of the 2-acre parcel, expressly stating that a survey would be conducted to provide the legal description. The survey was completed and the record contains testimony that John’s son was | ^present during the survey and was aware of the boundary lines. In addition, there is testimony that John was shown the survey flags and at no time did he verbalize any complaint or disagreement with the survey. Second, shortly after Don and his wife moved off of the 2-acre tract, in mid-May 2003, Laura moved her mobile home onto the property and peacefully possessed the property until January 2004. In addition, Laura hooked up to the existing water and utility sources with no objection from John. Significantly, this is the only 2-acre mobile home site owned by John. There is no evidence that John attempted to have her removed from the property or require that she pay any rent for the property. In fact, John visited Laura at her home on the property on more than one occasion. In this regard, we note that it is significant that the $2,000 purchase price was paid by Laura to John and Fern and was never refunded. Finally, we find it very significant that the trial court found credibility in the testimony of Laura and Fern and that all parties were aware of the agreement to sell the property described in the Affidavit prior to the execution of the Affidavit. We accord great deference to the credibility determinations of the trial court in this case.

In summary, based on the specific facts of this case, we agree with the trial court that parol evidence was admissible to aid in description of the property contained in the Affidavit. The evidence in this case clearly supports the conclusion that the 2-acre mobile home site surveyed and occupied by Laura was the parcel contemplated in the agreement to sell executed by John and Laura.

| .¡Finally, on the issue and claim of lesion, we are unpersuaded by the alternative argument advanced by John that the sales price of $2,000 was lesionary. The trial court properly viewed the appraisal as too remote in time to provide a fair market value as of the time of the execution of the Affidavit. Furthermore, we agree with the trial court that the appraisal only values the remaining acreage after the 2-acre parcel was culled and does not provide any value for the actual acreage at issue. We, therefore, find no error in the trial court’s refusal of the claim of lesion asserted by John.

CONCLUSION

For the foregoing reasons, the judgment of the trial court ordering specific performance of the agreement to sell and dismissing the claim of eviction is affirmed at the cost of Appellant, John M. Turner.

AFFIRMED.

      . See, e.g., Tullis v. Aertker, 352 So.2d 415 (La.App. 3d Cir. 1977), wherein the court enforced specific performance on a written receipt for $100 "Down Payment House Esler Field, Bal 13 months @ $45.00, Unpaid Balance $6150.00, $55.00 Per Mo” and where the defendants placed and allowed the plaintiff to remain in possession of the house and accepted $45 monthly payments from her for 12 years. See also Sexton v. Waggoner, 66 So.2d 634 (La.App. 2d Cir. 1953), wherein the court allowed parol evidence to identify five acres as being in the form of a square where there was a verbal sale to the plaintiff of "five acres located in the SE corner of the SW quarter of the SW quarter, Section 27, Township 23 N, Range 9 W” and the defendant allowed the plaintiff to go into possession.


text:
    In the Matter of M.M.
    No. 42,899-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 21, 2007.

      Joseph Christopher Seyler, Baton Rouge, Counsel for Appellant, M.M.
    Michelle Dufour Brown, Kristen Elizabeth Brown, Rockett, Bossier City, for Ap-pellee, Louisiana State University, Health Sciences Center.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   DREW, J.

JjM.M., represented by the Mental Health Advocacy Service, appealed the judgment finding him mentally ill and gravely disabled by substance abuse and ordering him judicially committed for inpatient treatment at The Pines for substance abuse treatment. M.M. was also judicially committed to the State of Louisiana Department of Health and Hospitals (“DHH”) until released to The Pines. The evidence presented to support the judicial commitment did not constitute the statutorily required “clear and convincing evidence” that M.M. was a danger to himself or others or gravely disabled either by mental illness or substance abuse.

While the involuntary judicial commitment sought by Louisiana State University Health Sciences Center (“LSUHSC”) and the action taken by the trial court was undoubtedly in M.M.’s best interests, the trial court erred in finding the equivocal evidence sufficient to meet the high burden of proof. Therefore, the judgment is legally erroneous. La. Const, art. 5 § 10. When the evidence falls short of the prescribed burden of proof, we must reverse. If M.M. is still involuntarily confined due to the judgment of judicial commitment, we order and direct that M.M. be released.

FACTUAL AND PROCEDURAL BACKGROUND

On June 13, 2007, LSUHSC filed a petition seeking judicial commitment of M.M., who was hospitalized at LSUHSC on a Physician’s Emergency Certificate on May 23, 2007. LSUHSC alleged M.M. was suffering from mental illness and substance abuse which made him dangerous to himself and others, gravely disabled, and unable to provide for |2his own basic needs. Moreover, M.M. allegedly was unable or unwilling to seek voluntary admission for treatment. The treating physician petitioned for M.M.’s judicial commitment to The Pines.

LSUHSC asserted that the 23-year-old man had a history of reported bipolar disorder with a long history of abuse of alcohol and prescription drugs. His mother sought protective custody for him. According to the petition, the Request for Protective Custody asserted M.M. was talking nonstop and making no sense, making his mother afraid, and expressing suicidal thoughts.

Other allegations were that M.M. had a DUI arrest when 18 and had two recent DUI arrests. He admitted heavy alcohol use, two months of sobriety followed by a relapse with heavy drinking for two or three weeks. While acknowledging alcoholism and his need for help, M.M. also “displayed significant denial and minimize[d] his symptoms.” M.M.’s goal was to return to Alabama and get custody of his infant daughter. His treating physician opined that his alcohol and drug abuse along with his DUIs warranted M.M.’s commitment to an inpatient substance abuse rehabilitation facility.

Following a hearing at which the court heard from M.M., his mother, and his LSUHSC doctor, the trial court found that M.M. was gravely disabled from mental illness and substance abuse and ordered, among other things, that M.M. be committed to inpatient treatment at The Pines and held at LSUHSC until he was released to The Pines. That judgment was signed Ron June 29, 2007. His court-appointed attorney from the Mental Health Advocacy Service filed for this appeal.

DISCUSSION

Judicial commitment of a mentally ill person is a civil exercise of the state’s police power. It is not a criminal proceeding or a formal interdiction affecting the committed person’s property rights. Before a person may be subjected to a judgment of civil commitment, the petitioner must establish by clear and convincing proof that the person is a danger to himself or others or is gravely disabled by substance abuse or mental illness. “Clear and convincing” evidence is more than a “preponderance” of evidence but less than “proof beyond a reasonable doubt.” In the Matter of B.W., 566 So.2d 1094 (La.App. 2d Cir.1990). Under this “clear and convincing” standard, the existence of the disputed fact must be highly probable, or much more probable than not. In the Matter of L.M.S., 476 So.2d 934 (La.App. 2d Cir.1985).

La. R.S. 28:55(E)(1) directs:

If the court finds by clear and convincing evidence that the respondent is dangerous to self or others or is gravely disabled, as a result of substance abuse or mental illness, it shall render a judgment for his commitment. After considering all relevant circumstances, including any preference of the respondent or his family, the court shall determine whether the respondent should be committed to a treatment facility which is medically suitable and least restrictive of the respondent’s liberty. However, if the placement determined by the court is unavailable, the court shall commit the respondent to the Department of Health and Hospitals for placement in a state treatment facility until such time as an opening is available for transfer to the treatment center determined by the court, unless the respondent waives the requirement for such transfer. Within fifteen days following an alternative placement, the department shall submit l4a report to the court stating the reasons for such placement and seeking court approval of the placement.

La. R.S. 28:56(B) states:

B. A commitment for alcoholism shall expire after forty-five days and the patient, if not converted to a voluntary status, shall be discharged, unless the court, upon application by the director of the treatment facility, finds that continued involuntary treatment is necessary and orders the patient recommitted for a period not to exceed sixty days; however, not more than two such sixty-day recommitments may be ordered in connection with the same continuous confinement.

The definition of “gravely disabled” is in La. R.S. 28:2(10):

“Gravely disabled” means the condition of a person who is unable to provide for his own basic physical needs, such as essential food, clothing, medical care, and shelter, as a result of serious mental illness or substance abuse and is unable to survive safely in freedom or protect himself from serious harm; the term also includes incapacitation by alcohol, which means the condition of a person who, as a result of the use of alcohol, is unconscious or whose judgment is otherwise so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment.

In O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), the Supreme Court stated:

[A] State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.

Generally, the appellate courts must give great weight to factual findings by the trial court. Because a person is deprived of liberty by involuntary commitment, the evidence must be reviewed for strict adherence to the high standard of proof required by constitutional and statutory law. In the Matter of M.M., 552 So.2d 528 (La.App. 2d Cir.1989).

| nMental Illness

There was no clear evidence that M.M. was mentally ill, much less that he was gravely disabled as a result of mental illness. The trial court’s reasons stated that M.M. possibly had bipolar disorder. His LSUHSC doctor testified that whether M.M. was mentally ill was yet to be determined. A neuropsychological exam showed primarily a problem of substance abuse and did not support a diagnosis of primary mental illness. Since the practice was to let a patient “detoxify” by letting all drugs metabolize out of his system, the doctor explained that no medicine was prescribed for M.M. while he was hospitalized. M.M. did not exhibit any withdrawal while at LSUHSC.

M.M. was “reasonably sane” at the time of the hearing according to his LSUHSC doctor, who attributed that to M.M.’s being in a very supportive environment in the hospital away from stress, alcohol, and access to drugs. The doctor ventured that M.M. might be mentally ill based upon information received that another professional had made that diagnosis and prescribed medication in a dosage appropriate for treatment of bipolar disorder. The doctor acknowledged he had never talked to that professional who prescribed the medicine and did not know what type of medical professional he/she was.

Substance Abuse

At the hearing, M.M. admitted that he had a problem with alcohol and used legal and illegal substances including marijuana, phenobarbital (his dog’s), and his mother’s Xanax. While he tested positive for four different | ^substances on admission to the hospital, the LSUHSC doctor testified M.M. did not suffer “withdrawal” and required no treatment for physical problems.

M.M. testified he returned to Shreveport after his girlfriend, who was the mother of his child, refused to permit him to live with her in Alabama due to what M.M. attributed to custody issues and money problems. His mother testified that M.M. lost his job as a cook while living in Alabama but that resulted from miscommunication and was not all his fault.

During the six months he resided in his parents’ home, he acknowledged verbal altercations with his mother over his unemployment, his child, and his medication. He confirmed being drunk and appearing naked in his parents’ kitchen on one occasion and being arrested twice for DUI within a three-week period. One of the arrests resulted in pretrial diversion while the other charge was pending. He explained driving the wrong way on a one-way street by saying he turned into the street the wrong way and immediately parked. M.M.’s only employment during the previous six months was intermittent work clearing bamboo from his aunt’s property. M.M. stated he had a culinary arts degree from Bossier Parish Community College and had worked in the restaurant business. M.M. testified he did not want to have treatment but wanted to work to support his child.

M.M.’s mother testified that she and M.M.’s father took him in but were dissatisfied with his behavior, since he was not working, brought people into the house at night, watched internet porn, got drunk and once|7went into the kitchen naked, left for days at the time without letting them know his whereabouts, and was not clean enough. M.M. also did not sleep, exhibited slurred speech, walked into walls, and was argumentative. M.M. frightened her but not to the point that she called the police, until he was admitted to LSUHSC. His mother acknowledged that she and her husband were not strong enough to demand that M.M. leave their home.

Other evidence that M.M. had a substance abuse problem was the neuropsy-chological exam which showed a problem of substance abuse and a finding of substance abuse made by the admissions assessment for The Pines substance abuse treatment center.

Grave Disability

While the testimony coupled with M.M.’s admission documents that M.M. has a substance abuse problem with drugs and alcohol, this record does not contain clear and convincing evidence that M.M. was gravely disabled by his substance abuse. The LSUHSC doctor stated at the hearing that M.M. should be confined to LSUHSC because the doctor wanted to maintain M.M.’s mental stability, to keep him away from temptation, to protect M.M., and to protect others if M.M. became intoxicated and drove under the influence. Since M.M. had received no treatment, the doctor predicted that upon release, M.M. would again use alcohol or drugs. The doctor speculated that M.M. would again drive under the influence and be a danger to himself and others. The doctor requested that M.M. be retained in custody of the hospital so that the level of sobriety and state of mental | ^stability M.M. displayed at the hearing could be maintained until M.M. received treatment at The Pines.

LSUHSC also sought to rely on M.M.’s stated preference to work instead of being treated for substance abuse as evidence of his incapability of realizing his disability and making rational decisions regarding treatment. La. R.S. 28:2(10). That a person with a substance abuse problem unwisely declines to seek treatment is not clear and convincing evidence that M.M. was unable to make rational decisions.

To prove a person is gravely disabled, evidence must clearly and convincing establish that he is unable to provide for his own basic physical needs, such as essential food, clothing, medical care, and shelter and unable to survive in freedom or protect himself from serious harm. Both elements must be proved to establish grave disability. In re Erin B., 99-496 (La.App. 5th Cir.2/16/00), 751 So.2d 946, writ denied, 2000-1000 (La.6/2/00), 763 So.2d 597. Even during the time periods in which M.M. actively abused drugs and alcohol resulting in wild and foolish behavior, no evidence established that M.M. could not provide for or protect himself. During the period of time he resided with his parents, he did not have to provide for himself, since they provided his basic needs.

CONCLUSION

The record shows that M.M. has a substance abuse problem which may or may not be complicated by an undiagnosed mental illness. LSUHSC’s evidence did not establish by clear and convincing evidence that M.M. was a danger to himself or others- or gravely disabled either by mental 13illness or substance abuse. Therefore, the trial court erred in ordering that M.M. be confined pursuant to an involuntary judicial commitment. The evidence presented was insufficient to support a judgment of involuntary judicial commitment.

Our review reveals the evidence presented did not strictly adhere to the high standard of proof required for involuntary commitment. However, this court is compelled to observe that the actions taken by LSUHSC, his parents, and the trial court were all in his best interests of M.M. who has a serious substance abuse problem. M.M. needed/needs immediate treatment for his admitted substance abuse and evaluation for possible mental illness which this court urges M.M. to seek voluntarily if he has not already done so. Otherwise, M.M. may find himself in circumstances of his own making which result in his becoming a danger to himself or others or being gravely disabled either by mental illness or substance abuse.

DECREE

The judgment of judicial commitment ordering M.M. confined to LSUHSC and The Pines is REVERSED. If M.M. is still involuntarily confined, it is ordered and directed that he be discharged upon finality of the judgment of this court.

      . The Pines is a facility in Shreveport for treatment of addictive and substance abuse disorders.


author: DICKINSON, Justice, for the Court.

text:
    Danny L. HOLLEY v. Wanda S. HOLLEY.
    No. 2006-CA-01230-SCT.
    Supreme Court of Mississippi.
    Nov. 29, 2007.

      Mark G. Williamson, Starkville, attorney for appellant.
    John W. Crowell, Columbus, Kristen Wood Williams, attorneys for appellee.
    Before DIAZ, P.J., DICKINSON and LAMAR, JJ.
   DICKINSON, Justice, for the Court.

¶ 1. In this divorce case, Danny L. Holley claims the chancellor awarded excessive alimony. Finding no abuse of discretion, we affirm.

FACTS AND PROCEEDINGS

¶2. When the Lowndes County Chancery Court granted Wanda and Danny Holley a divorce in 2002, they had been married nineteen years. Danny was a stock broker and Wanda was a partner in an accounting firm.

¶3. At trial, Danny provided several reasons why he had experienced a decrease in income, including prior treatment for alcohol abuse, a loss of clients, and a downturn in the stock market. The chancellor considered Danny’s average earnings for the previous six years and ordered Danny to pay $2,000 per month in periodic alimony for sixty months.

¶ 4. Danny appealed, and this Court reversed and remanded for a determination of the appropriate type and amount of alimony. Holley v. Holley, 2002-CT-00296-SCT (Miss.2002). On remand, the parties agreed to have the chancellor reconsider the evidence presented in the original trial. The chancery court re-examined the evidence and ordered Danny to pay $750 per month in periodic alimony and $500 per month in alimony arrearages. Danny now appeals that judgment.

ANALYSIS

¶ 5. The only issue presented for our review is whether the award of alimony was excessive. A chancellor’s order granting alimony will not be reversed on appeal unless it is against the overwhelming weight of the evidence. Harrell v. Harrell, 231 So.2d 793 (Miss.1970). Deference is afforded the chancellor’s determinations so long as there is substantial evidence to support those determinations. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994). A chancellor’s findings may be reversed only if manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 626 (Miss.2002).

¶ 6. After applying the factors established by this Court in Armstrong v. Armstrong, the Chancellor determined that an award of alimony was appropriate. Armstrong, 618 So.2d 1278, 1281-82 (Miss. 1993). Specifically, the chancellor determined that Danny’s net income was greater than Wanda’s and that Wanda’s expenses were higher than Danny’s. He considered the needs of the parties. The chancellor found that the nineteen-year •marriage was long. He considered the fact that the children lived with Wanda and that, without alimony, Wanda could not maintain her previous standard of living because her expenses are much greater than her income. He found that Danny’s adulterous conduct was the sole cause of the breakup of the marriage. He also considered all of the other relevant Armstrong factors.

¶ 7. Taking these factors into account, as is proper under Armstrong, the chancellor granted Wanda $750 per month in periodic alimony. Because this determination is supported by the evidence, it will not be disturbed.

¶ 8. When calculating Danny’s income, the chancellor considered Danny’s average income for the six years preceding the trial. There was considerable evidence that, as a stock broker working on commission, Danny’s income fluctuated depending on the number of clients he served and the number and size of transactions he facilitated, all of which may be affected by fluctuations in the stock market. Because of the fluctuations in Danny’s income, it was appropriate for the chancellor to use an average of Danny’s income for the prior six years. Roberts v. Roberts, 924 So.2d 550, 558 (Miss.App. 2005). Although Danny presented evidence that his income was declining, the chancellor is the trier of fact and determines the weight and credibility of the evidence. Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994).

¶ 9. The chancellor also considered a list of expenses that Wanda submitted to the court. Danny offered no testimony or evidence that Wanda’s expenses were false, misleading or otherwise erroneous. Instead, Danny now argues that Wanda’s income minus reported expenses for seven months prior to the divorce would leave her with a $25,000 deficit for which she has failed to account. However, Wanda testified that during this seven-month period, she made interest-only payments on her home, incurred credit card bills of more than $6,000, did not buy back-to-school clothes for the children, and delayed paying her property taxes of $3,500. In addition, two of their children took part-time jobs because Danny was providing little support. This would account for most, if not all, of the $25,000 for which Wanda allegedly failed to account.

¶ 10. This Court previously reversed the chancellor’s initial award of “periodic alimony,” finding that it should have been characterized as rehabilitative periodic alimony. On remand, the chancellor again awarded periodic alimony, but stated that the alimony shall continue until Wanda remarries or one of the parties dies.

¶ 11. Periodic alimony, “if allowed, should be reasonable in amount, commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay.” Creekmore v. Creekmore, 651 So.2d 513, 517 (Miss.1995). Periodic alimony is subject to modification and ceases upon the remarriage of the wife or the death of either party. McDonald v. McDonald, 683 So.2d 929 (Miss.1996). Periodic alimony may not be subject to time limitations. Waldron v. Waldron, 743 So.2d 1064, 1065 (Miss.App.1999). The Court espoused a list of factors that the chancellor should consider when entering a judgment awarding alimony in Armstrong v. Armstrong, 618 So.2d 1278, 1281-82 (Miss.1993).

¶ 12. In this case, the chancellor examined and applied all of the Armstrong factors in making his determination that periodic alimony of $750 per month was appropriate. As discussed above, the evidence presented in this case supports his findings. Therefore, it was not manifestly erroneous to award periodic alimony.

CONCLUSION

¶ 13. For the reasons stated above, this Court finds that the chancellor’s award of periodic alimony in the amount of $750 and the award of $500 per month in alimony arrearages was appropriate and the chancellor’s award is affirmed.

¶ 14. AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, GRAVES, RANDOLPH AND LAMAR, JJ., CONCUR. EASLEY, J., NOT PARTICIPATING.


author: LAMAR, Justice, for the Court.

text:
    Kendrick GRAVES v. STATE of Mississippi.
    No. 2006-KA-01730-SCT.
    Supreme Court of Mississippi.
    Nov. 29, 2007.
    Thomas W. Powell, Attorney for Appellant.

      Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.
    Before DIAZ, P.J., DICKINSON and LAMAR, JJ.

      . Though Parker was the actual shooter, there is no challenge as to Graves’s liability as an accomplice in this case.

   LAMAR, Justice, for the Court.

¶ 1. This case comes to us from the Circuit Court of the First Judicial District of Hinds County, where Kendrick Graves was convicted of aggravated assault and shooting into an vehicle. Graves was sentenced to consecutive terms of ten years imprisonment for aggravated assault and five years imprisonment for shooting into a vehicle. Claiming that his prosecution for both aggravated assault and shooting into a vehicle constituted double jeopardy, Graves appeals to this Court.

FACTS

¶ 2. On June 13, 2000, Eric Washington was sitting in the driver’s seat of his car talking with Herbert Thomas, who was in the front passenger’s seat, when a man by the name of Charles Parker walked up to the driver’s window and fired a gun into the car. Washington was shot five times, and as a result, he was paralyzed, lost a kidney, and suffered permanent nerve damage. Graves was tried and convicted as an accomplice to Parker in the shooting.

¶ 3. Parker, called by the State, testified that on June 13, 2000, he was picked up by Clarence Witherspoon and Kendrick Graves and that they went to a party on Morehouse Street in Hinds County. Once on Morehouse Street, according to Parker’s testimony, someone told Parker and Graves that Thomas was coming and that he was going to shoot Graves. When Thomas arrived, Parker saw Thomas get into the passenger side of Washington’s car. Parker, who admittedly was intoxicated at the time of the events, testified that Graves handed him a .380 caliber pistol and said, “that’s him in the white t-shirt,” talking about Thomas. Parker took the gun from Graves and shot into Washington’s car. According to Parker, Graves then told him that he had shot the wrong person.

¶ 4. In addition to the testimony of Parker and Washington, the State presented two eyewitnesses to the shooting, Glenn Ford and Frank Craft. Both Ford and Craft testified that they were present on Morehouse Street at the time of the shooting, and both corroborated the testimony of Parker and Washington.

COURSE OF PROCEEDINGS

¶ 5. Graves was indicted on October 15, 2004, for one count of aggravated assault and one count of shooting into a vehicle. A Hinds County jury found Graves guilty on both counts on May 9, 2006. Graves did not testify in his own defense. Asserting that his prosecution for both aggravated assault and shooting into a vehicle violated the double-jeopardy clause of the Fifth Amendment to the United States Constitution, Graves appealed.

ANALYSIS

¶ 6. The sole issue presented on this appeal is Graves’s assertion that his right under the Fifth Amendment not to be twice put in jeopardy for the same offense has been violated. Graves made this argument for the first time on appeal. However, as the protection against double jeopardy is a fundamental right, we will not apply a procedural bar and will address the merits of Graves’s claim. Fuselier v. State, 654 So.2d 519, 522 (Miss.1995) (holding that, while constitutional questions not raised at trial generally are deemed waived, errors affecting fundamental constitutional rights may be excepted from procedural bars which otherwise would prohibit consideration).

¶7. “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....” U.S. Const. amend. V. See also, Miss. Const, art. Ill § 22 (1890). This guarantee, enforceable against the states through the Fourteenth Amendment, assures three separate protections: (1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense. U.S. v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). This case deals with the protection against multiple punishments for the same offense.

¶ 8. To determine whether double-jeopardy protections apply, we look to the “same-elements” test prescribed by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Block-burger test instructs us to determine whether each offense contains an element not present in the other; if not, they are labeled the same offense for double-jeopardy purposes, and successive prosecutions and/or punishments are constitutionally barred. Powell v. State, 806 So.2d 1069, 1074 (Miss.2001).

¶ 9. The defendant in Blockburger was tried and convicted on two counts, the sale of a drug not in or from the original packaging and the sale of a drug without a written order, both charges arising from one specific drug sale. Blockburger, 284 U.S. at 301, 52 S.Ct. 180. Rejecting the defendant’s claim that the two counts on which he was convicted constituted one offense, the Supreme Court stated:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Id. at 304, 52 S.Ct. 180 (citations omitted). The Court went on to say:

A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Id. (citations omitted). The Supreme Court affirmed the defendant’s conviction, holding that, even though both sections were violated by one sale, two offenses were committed.

¶ 10. This Court dealt with a very similar set of facts to the case sub judice in Shook v. State, 552 So.2d 841 (Miss.1989), wherein Philip Shook was convicted of shooting into a dwelling house and aggravated assault. On appeal, he claimed that aggravated assault and shooting into a dwelling house constituted the same offense for double-jeopardy purposes. Shook, 552 So.2d at 848.

¶ 11. Applying the Blockburger test to the aggravated-assault and shooting-into-a-dwelling statutes, this Court concluded that Shook had been properly charged and tried for both offenses, stating:

Clearly the two statutes require proof of different facts .... under the statutes, shooting into a dwelling house is not required to establish an aggravated assault and neither injury nor attempt to injure is required to prove shooting into a dwelling house.

Id. at 848-49.

¶ 12. In applying the Blockburger test to the facts of this case, we must look to the statutes under which Graves was convicted. Mississippi Code Annotated Section 97-3-7(2) (Rev.2006) provides, in part, that:

A person is guilty of aggravated assault if he .... (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

Mississippi Code Annotated Section 97-25-47 (Rev.2006) provides, in part, that:

If any person or persons shall willfully shoot any firearms or hurl any missile at, or into, any .... motor vehicle .... such person shall, upon conviction, be punished by a fine of not less than one hundred dollars ($100) nor more than two hundred fifty dollars ($250), or be committed to the custody of the department of corrections not less than one (1) year nor more than five (5) years, or by both such fine and imprisonment.
For the jury to find Graves guilty of aggravated assault, the State was required to prove three elements: (1) that Graves purposely or knowingly, unlawfully and not in necessary self-defense, caused bodily injury to Washington; (2) that he used a deadly weapon, in this ease, a gun, to do so; and (3) that shooting Washington caused the bodily injury. For the jury to find Graves guilty of shooting into a vehicle, the State was required to prove that Graves shot a firearm into a motor vehicle.

¶ 13. Given the elements required to prove each of these crimes, Blockburger instructs us to determine whether there are elements in each offense not contained in the other. We find that there are. To prove aggravated assault, no element requires proof of a firearm being shot into a vehicle. To prove shooting into a vehicle, there is no requirement of proof of bodily injury.

¶ 14. It is true that these two crimes were committed almost simultaneously. However, this Court has made clear that “[tjemporal proximity does not generate a juridical union of separate and distinct criminal acts, nor does the presence of a common nucleus of operative facts.” Pharr v. State, 465 So.2d 294, 301 (Miss. 1984) (quoting Ball v. State, 437 So.2d 423, 425 (Miss.1983)). As it is inconsequential that these two crimes took place at the same time, so is it unimportant that the same evidence was used to convict Graves of both of these crimes. Clearly, aggravated assault and shooting into a vehicle each requires proof of facts the other does not. Therefore, we find that Graves’s argument is without merit.

CONCLUSION

¶ 15. Application of the Blockburger test to the facts of this case reveals that elements of each of the crimes of shooting into a vehicle and aggravated assault are not contained in the other. Therefore, we find that Graves’s claim of double jeopardy is without merit, and his conviction and sentence on both charges are affirmed.

¶ 16. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SHOOTING INTO VEHICLE AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH SENTENCE IMPOSED IN COUNT I.

SMITH, C.J., WALLER AND DIAZ, P;jj., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

      . It is undisputed that Charles Parker was the shooter.

      . Parker pleaded guilty to one count of aggravated assault and one count of shooting into a vehicle for his part in Washington's shooting. At the time of his testimony, he was serving a twenty-year sentence in the custody of the Mississippi Department of Corrections.