author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Raphiel HILL, Appellant.
    No. 41,031-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      W. Jarred Franklin, for Appellant.
    Paul J. Carmouche, District Attorney, Brady O’Callaghan, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and MOORE, JJ.
   BROWN, Chief Judge.

| defendant, Raphiel Hill, was charged by bill of information with armed robbery and convicted by a jury of the lesser included offense of simple robbery. Thereafter, having been adjudicated a third felony offender, defendant was sentenced to seven years at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant appeals his conviction and sentence. Finding no error, however, we affirm.

Facts

On April 14, 2004, defendant, Raphiel Hill, ran into Marcus Brown, a childhood acquaintance, at a local convenience store and asked Brown for a ride to an address on Desoto Street. Brown, who was driving his roommate’s car, a Dodge Intrepid, testified that once on Desoto Street, defendant pulled out a gun and pointed it at him. A struggle ensued and defendant hit Brown twice on the head with the gun. Brown managed to get away and defendant drove off in the vehicle. Brown used the phone of a nearby resident to report the incident. Brown reported to police that the car was taken by defendant, Ra-phiel Hill.

On April 19, 2004, Cedric Harvey and China Edwards were in the Intrepid heading down Line Avenue when the car’s owner, Carl Muscove, spotted his vehicle and followed the men to the Spring Lake Nursing Home. The police were called and Harvey and Edwards were taken in for questioning. Harvey related to Detective Chris Wray that he had borrowed the car from defendant, who was his wife’s godson, believing that the car belonged to defendant. According to Harvey, he had no idea that the ^vehicle had been stolen. Both Harvey and Brown picked defendant out of a photo lineup.

Defendant was arrested and charged with armed robbery and convicted on October 27, 2004, by a jury of simple robbery, a responsive verdict. Thereafter, adjudicated a habitual offender, defendant was sentenced to seven years without benefit. Defendant has appealed his conviction and sentence.

Discussion

Sufficiency of the Evidence

Defendant asserts that the prosecution presented insufficient evidence to establish the elements of simple robbery and that the jury erred in finding otherwise. He urges this court to set aside his conviction.

Simple robbery is defined as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon. La. R.S. 14:65(A). Armed robbery contains the elements of simple robbery but adds commission while armed with a dangerous weapon. La. R.S. 14:64. Proof of the greater or lesser crime supports the conviction of the lesser included offense. State v. Johnson, 01-0006 (La.05/31/02), 823 So.2d 917; State v. Cooley, 260 La. 768, 257 So.2d 400 (1972); State v. Wright, 36,635 (La.App.2d Cir.03/07/03), 840 So.2d 1271.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable tojjthe prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.09/29/02), 827 So.2d 488, unit denied, 02-2634 (La.09/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. Art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, unit denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So.2d 422.

In support of his argument, defendant points out that the state attempted to prove its case with the testimony of Marcus Brown and Cedric Harvey, both of whom had substantial motives to lie. Defendant notes that Brown had borrowed his roommate’s car and knew he would be in trouble when he could not return the car and Harvey was, at the time of the incident, awaiting sentencing for another crime for which he had already pled guilty. Thus, there were incentives for these two witnesses to place the robbery elsewhere, which is what they did by blaming defendant. Furthermore, argues defendant, since the jury obviously did not believe that he possessed |4a weapon, as evidenced by the simple robbery conviction rather than a verdict of guilty as charged of armed robbery, it logically follows that the jury could not have found credible the victim’s testimony about the entire robbery.

Defendant also argued that the police failed to secure any additional physical evidence which could have led to the identity of the real robber. In particular, defendant contends that the officers failed to investigate and therefore the state was unable to produce at trial any physical evidence whatsoever in support of Brown’s claim that it was defendant who took the car.

As stated, a reviewing court does not assess credibility or reweigh evidence. After reviewing the record, however, we find no apparent conflict in the testimony given by Marcus Brown or Cedric Harvey. The problem with defendant’s theory that these two witnesses fabricated their testimony is that Brown and Harvey had never met each other and identified Raphiel Hill at separate times to police. We find the evidence to be such that a rational trier of fact could have found the essential elements of the crime of armed or simple robbery proven beyond a reasonable doubt. This assignment of error is without merit.

State’s Closing Argument

Defendant next urges that the state’s attorney committed reversible error during his closing argument by telling the jury that the burden of proof had shifted to the defendant. Also, with his constant referrals to defendant’s | ^failure to produce evidence, the prosecutor made indirect references to defendant’s failure to testify, which is also prohibited.

Harmless error analysis begins with the premise that the evidence is otherwise sufficient to sustain the conviction if viewed from the perspective of a rational factfinder and asks whether beyond a reasonable doubt the error could not have contributed to the verdict actually returned by the defendant’s jury. State v. Haddad, 99-1272 (La.02/29/00), 767 So.2d 682, cert. denied, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

A prosecutor’s misstatements of the law during voir dire examination or in his opening and closing remarks do not require reversal of a defendant’s conviction if the court properly charges the jury at the close of the case. State v. Cavazos, 610 So.2d 127 (La.1992). The court will not reverse a conviction if not “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. State v. Legrand, 02-1462 (La.12/03/03), 864 So.2d 89, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005).

In context, the references made by the prosecution were in rebuttal to arguments urged by defense counsel. These statements were that “We’ve met the prima facia burden of giving you evidence of defendant’s guilt” and | fithat “He (defense attorney) fails to respond to my challenge. Where is the reasonable hypothesis?”

A prosecutor’s burden is not a “prima facia” case; however, this misstatement was cured by the judge’s instructions to the jury, which were that:

The statements of the lawyers are not to be considered by you as evidence. The lawyers have argued their interpretation of the law.... The state must prove defendant’s guilt beyond a reasonable doubt and until so proved, the defendant is presumed to be innocent.

There is nothing in the record which would indicate that any of the prosecutor’s remarks contributed to the jury’s verdict. Furthermore, after reviewing the record, we note that the transcript of the closing arguments do not support defendant’s contention that the prosecutor made an indirect reference to defendant’s failure to testify. Instead, the state’s attorney’s remarks were within the limits set by La. C. Cr. P. art. 774, which provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The judge charged the jury that, “Defendant is not required to testify. No presumption of guilt may be raised, and no inference of any kind may be drawn from the fact that the Defendant did not testify.” This assignment of error is without merit.

1 ^Excessive Sentence

Defendant’s third assignment of error is that his sentence is excessive because the trial court relied solely upon defendant’s prior criminal convictions in sentencing defendant to seven years at hard labor.

When a defendant fails to file a timely motion to reconsider sentence the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993), on remand, 626 So.2d 856 (La.App. 2d Cir.1993), writ denied, 93-2933 (La.02/11/94), 634 So.2d 373; State v. Raev, 36,847 (La.App.2d Cir.03/05/03), 839 So.2d 1015, unit denied, 03-0988 (La.10/10/03), 855 So.2d 330; State v. Duncan, 30,453 (La.App.2d Cir.02/25/98), 707 So.2d 164. A sentence is constitutionally excessive when it is grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

In the instant case, defendant was sentenced on June 16, 2005. His motion to reconsider sentence, filed on July 25, 2005, was untimely under La. C. Cr. P. art. 881.1(A). Reviewing defendant’s sentence for constitutional excessiveness, State v. Mims, supra, we note the following. Defendant was convicted of simple robbery. One who commits the crime of simple robbery shall be fined not more than $3,000, imprisoned with or without hard labor for not more than seven years, or both. La. R.S. 14:65. Following his conviction, defendant was adjudicated a third felony offender. The sentencing range for a third felony offender convicted of simple | Rrobbery was between 4 years and 8 months and 14 years. See La. R.S. 15:529.1(A)(l)(b)(i). Defendant’s seven-year hard labor sentence is at the lower end of this range and we cannot say that it is excessive under the circumstances of this case.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are affirmed.

      . Error Patent Review

      In the instant case, the terms of the statutes under which defendant was sentenced do not include a prohibition on parole. See La. R.S. 14:65; La. R.S. 15:529.1(G) (which does provide, however, that sentences imposed under the habitual offender law are to be served without benefit of probation or suspension of sentence). Instead, defendant's ineligibility for parole is statutorily mandated by La. R.S. 15:574.4(A)(1), which provides that a person convicted of a third (or subsequent) felony offense is not eligible for parole. State v. Solomon, 40,659 (La.App.2d Cir.03/08/06), 923 So.2d 954. This ineligibility for parole takes effect by operation of the provisions of La. R.S. 15:574.4(A)(1). See State ex rel. Calvin v. State, 03-0870 (La.04/02/04), 869 So.2d 866; State v. Sweat, 40,625 (La.App.2d Cir.04/12/06), 926 So.2d 779.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    J.B. ADAMS, et al., Plaintiffs-Appellants, v. ASBESTOS CORPORATION, LTD., et al., Defendants-Appellees.
    No. 41,028-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      LeBlanc and Waddell by Jody E. Ander-man, Baton Rouge, Jeffrey R. Nicholson; Baron & Budd by Sherri A. Saucer, Dallas, TX, for Appellants Walter R. Britton and Cynthia B. Francis.
    Phelps Dunbar by H. Alston Johnson, III, Jane H. Barney, Annette N. Peltier, Baton Rouge, for Appellees Libbey Owens Ford Co., Eaton Corp., Aeroquip-Vickers Inc. and Trinova Corp.
    Before STEWART, CARAWAY and MOORE, JJ.
   STEWART, J.

11Appellants, Walter Rodgers Britton and Cynthia Britton Francis, seek reversal of the trial court’s judgment sustaining an exception of no cause of action filed by the appellee, Eaton Corporation, and dismissing their claims with prejudice. For the following reasons, we affirm the judgment of the trial court.

FACTS

On July 6, 1999, appellants were added as plaintiffs in an ongoing asbestos suit. They asserted wrongful death and survival actions for damages stemming from the alleged long-term exposure to asbestos endured by their father, James R. Britton, who died on March 19,1996.

Eaton Corporation, one of the defendants in the suit, filed an exception of no cause of action on the grounds that the wrongful death action was barred by workers’ compensation and that the survival action had expired by the peremptive period provided in La. C.C. art. 2315.1 prior to being filed.

At the hearing on the exception, the parties stipulated that the wrongful death claim was barred. However, counsel for appellants asserted that Mr. Britton had filed a suit in Texas prior to his death and that the Texas suit against defendants, who would be solidarily liable for his damages, interrupted the running of prescription on the survival action. The trial court rejected counsel’s argument and granted the exception. At counsel’s request, the trial court issued written reasons for judgment stating that the survival action survives for only one year from death under La. C.C. art. 2815.1 and that appellants failed to timely file the survival action. The [ 2trial court followed Courtland v. Century Indemnity Co., 2000-333 (La.App. 5th Cir.10/18/00), 772 So.2d 797, unit denied, 2000-3156 (La.2/9/01), 785 So.2d 822, in rejecting the argument that a suit filed in Texas precluded application of the one year period in La. C.C. art. 2315.1. This appeal followed.

DISCUSSION

The exception of no cause of action questions whether the law extends a remedy against the defendant under the facts alleged in the petition. Industrial Companies, Inc. v. Durbin, 2002-0665 (La.1/28/03), 837 So.2d 1207; Grocery Supply Co. v. Winterton Food Stores, 31,114 (La.App.2d Cir.12/9/98), 722 So.2d 94, rehearing denied. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931. Rather, the exception is triable on the face of the petition with the well-pleaded facts accepted as true. Industrial Companies, Inc. v. Durbin, supra. A judgment granting an exception of no cause of action is reviewed de novo, because the exception raises a question of law, and the lower court’s decision was based only on the sufficiency of the petition. Haulcy v. Saint Gobain Containers, 39,405 (La.App.2d Cir.3/9/05), 895 So.2d 803. Generally, the exception of no cause of action is the correct procedural device for raising the issue of peremption. Coffey v. Block, 99-1221 (La.App. 1st Cir.6/23/00), 762 So.2d 1181, writ denied, 2000-2226 (La.10/27/00), 772 So.2d 651.

Appellants argue that the time period of La. C.C. Art. 2315.1 is prescriptive rather than peremptive and that an out-of-state case against [ ssolidar.y obligors interrupted prescription on the survival action in Louisiana. However, the record fails to establish that the deceased, Mr. Britton, filed suit in Texas prior to his death. As stated, the exception of no cause of action is triable on the face of the petition. Moreover, facts referred to solely by counsel, whether in arguments or briefs, are not considered evidence in the record. Thomas v. Connolly, 31,447 (La.App.2d Cir.1/20/99), 726 So.2d 1052. In Industrial Companies, Inc. v. Durbin, supra, the supreme court noted that argument in memorandum could not form the basis for granting an exception of no cause of action. Likewise, argument or assertions of counsel should not form the basis for denying the exception when the petition fails to state a cause of action.

At the hearing on the exception, counsel for appellants asserted that the petition stated that Mr. Britton filed a lawsuit in Texas prior to his death and that the suit was attached to the petition. The record does not support either assertion. The petition adding the survival action does not refer to any previously filed suit by the deceased in Texas. Nor does the petition include any attachment pertaining to Texas litigation. Furthermore, there was no stipulation by the parties as to the existence of a suit filed in Texas, and no offer by counsel to introduce evidence of such a suit. In fact, the record shows no response by appellants in opposition to the exception other than argument of counsel at the hearing. As stated, review of the exception of no cause of action is limited to the petition and does not include consideration of arguments or assertions by counsel. The petition does not support a cause of action in favor of appellants. Even if appellants were allowed to |4amend their petition as permitted by La. C.C.P. art. 934 to allege the existence of the Texas suit, the petition would still fail to state a cause of action under La. C.C. art. 2315.1, as explained hereafter.

With regard to survival actions, La. C.C. art. 2315.1 states in relevant part:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased....

The one-year limitation period applicable to survival actions has been held to be peremptive rather than prescriptive. Jones v. Philco-Ford Corp., 452 So.2d 370 (La.App. 1st Cir.1984), units denied, 457 So.2d 1193 (La.1984) and 457 So.2d 1198 (La.1984); and McClendon v. State, 357 So.2d 1218 (La.App. 1st Cir.1978). In Guidry v. Theriot, 377 So.2d 319 (La.1979), repudiated on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983), the supreme court addressed the one-year limitation provided for survival actions. The court explained that where the victim dies without having instituted a claim, the beneficiary must institute the survival action within one year from the death. If the victim instituted an action for damages and dies during the pendency of his claim, the beneficiaries may substitute themselves for the deceased in the pending action; the prescriptive period of the survival action no longer applies, rather the nonabatement and substitution provisions of La. C.C.P. arts. 428, 561, and 801 are controlling. Guidry, supra at 824-325.

In Courtland v. Century Indemn. Co., supra, the fifth circuit dismissed the survival action of plaintiffs filed more than one year from the |,.¡death of the deceased, who had previously filed suit in Texas for damages from work-related silicosis. Referring to Guidry, supra, the court concluded that the Texas suit was not an “instituted action” into which the plaintiffs could substitute themselves in the deceased victim’s place. Because the tort victim had not filed an action in Louisiana prior to his death and because the plaintiffs had failed to institute their own action within one year of the victim’s death, their suit was untimely under La. C.C. art. 2315.1. Courtland, supra, is analogous to the instant case and precludes finding in favor of appellants. Mr. Britton had not filed an action in Louisiana prior to his death, so there was no instituted action into which his children could substitute themselves. Also, his children failed to file their own action within the one year limitation period of La. C.C. art. 2315.1.

Review of the petition shows that the survival action was instituted on July 6, 1999, over three years from the date of Mr. Britton’s death, March 19, 1996, and well over the one-year peremptive time period allowed by La. C.C. art. 2315.1. Therefore, we find that the exception was properly granted.

CONCLUSION

For the reasons stated, the trial court’s judgment is affirmed with costs assessed to appellants.

AFFIRMED.


author: GASKINS, J. DREW, J.,

text:
    STATE of Louisiana, Appellee, v. Katrina ROBINSON, Appellant.
    Nos. 40,983-KA, 40,984-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Peggy Sullivan, Louisiana Appellate Project, Jack W. Slaid, Indigent Defender Board, for Appellant.
    J. Schuyler Marvin, District Attorney, Marcus Patillo, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   GASKINS, J.

_JjThe defendant, Katrina Robinson, entered a guilty plea to second degree battery and was ordered to serve three years at hai’d labor. She also entered a guilty plea to aggravated second degree battery and was ordered to serve ten years at hard labor, with the sentences to be served consecutively. She now appeals the sentences as excessive. Noting constitutional error in the guilty pleas, we vacate the convictions, set aside the sentences, and remand for further proceedings.

FACTS

On December 5, 2004, the defendant engaged in an altercation in which she cut her sister, Felicia Robinson, with a knife. The defendant was charged with aggravated battery. On March 11, 2005, the defendant shot her boyfriend, Laverto Shine. She was charged with attempted second degree murder.

On June 13, 2005, the defendant entered guilty pleas to reduced charges in both matters. Pursuant to a plea agreement, the defendant was allowed to plead guilty to second degree battery in the altercation with her sister and aggravated second degree battery in the shooting of her boyfriend. The court then imposed the sentences set forth above. Timely filed motions to reconsider the sentences were denied by the trial court.

DISCUSSION

United States Constitution Amendment VI provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed by the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory | ¡process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Feaster, 33,879 (La.App.2d Cir.11/1/00), 779 So.2d 761. In order for a guilty plea to be valid, it is necessary for the accused to make a knowing and intelligent waiver of three constitutionally guaranteed fundamental rights. Those rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nuccio, 454 So.2d 93 (La.1984); State v. Jones, 28,929 (La.App.2d Cir.4/2/97), 691 So.2d 858.

A guilty plea will not be considered free and voluntary unless, at the very least, the court advises the defendant of the triad of rights as annunciated in Boy-kin, supra and the Louisiana jurisprudence. An express and knowing waiver of those rights must appear on the record; an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992).

At the guilty plea proceeding on these two offenses, the trial court failed to adequately advise the defendant of her constitutional rights as required by Boykin v. Alabama, supra. The trial court advised the defendant that she had a right to trial, but failed to advise her that she had a right to trial by jury. The court asked the defendant if she understood her rights as explained. Finally, the trial court asked the defense counsel if the defendant understood her rights and voluntarily waived them. Both the defendant and the defense counsel answered affirmatively.

|RWhile the Louisiana Supreme Court held in State v. Guzman, 1999-1753 (La.5/16/00), 769 So.2d 1158, that deficiencies in a guilty plea in violation of La. C. Cr. P. art. 556.1 are not subject to error patent review, the failure of a court to advise the defendant of his right to a jury trial is also a violation of Boykin, supra.

In State v. Feaster, supra, this court vacated a guilty plea where the defendant was not informed of his right to a trial by jury. That opinion specified that the trial court advised the defendant several times of his right to a trial, but not a jury trial. See also State v. Morrison, supra, where the court reversed a guilty plea for the trial court’s failure to inform the defendant of his right to a jury trial.

This court has also set aside habitual offender adjudications based upon a prior guilty plea where the defendant was advised of his right to a trial, but not a jury trial. State v. Kunzman, 31,976 (La.App.2d Cir.5/5/99), 741 So.2d 112; State v. Walker, 32,342 (La.App.2d Cir.9/24/99), 747 So.2d 133, writ denied, 2000-0999 (La.11/13/00), 773 So.2d 725. See also State v. Jarrow, 2003-0846 (LaApp. 4th Cir.9/10/03), 857 So.2d 12.

The minutes of the defendant’s arraignment state that the court explained “her rights as to the method of trial.” The minutes of the defendant’s guilty pleas both indicate that the court “explained to the defendant the right to trial by jury,.... ” This is simply not supported by the transcript. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983).

Because the defendant was not properly informed of her basic constitutional rights prior to entry of her guilty pleas, as required by Boykin, the pleas are not valid. Accordingly, we vacate the pleas, set aside the sentences, and remand these matters for further proceedings. We do not reach the defendant’s complaint that the sentences imposed were excessive.

CONCLUSION

For the reasons stated above, we vacate and set aside the convictions and sentences and remand to the trial court for further proceedings.

CONVICTIONS AND SENTENCES VACATED AND SET ASIDE; REMANDED.

DREW, J., concurs with written reasons.

DREW, J.,

concurring.

hi concur with the excellent opinion written by my sister judge, though I feel constrained to add a couple of thoughts.

First, it would be helpful if prosecutors listened closely in court to ALL Boykin colloquies and (discreetly) point out at that moment any omissions by the trial court. This practice would make a Boykin waiver legal, deliver full rights to the defendant, and save everyone a lot of time and frustration months or years later.

Second, as I have written before, in the 26th Judicial District Court, at least since 1988, it has been the practice to go over with the defendant at arraignment his possible choice of bench trial or trial by jury. If this has no effect, then the 26th is wasting time and breath. If this were a guilty plea to the original charge, I would request the arraignment transcript, and if the magic words were there, then dissent. As it is, a plea here to a reduced charge, the failure to cover the defendant’s right to a jury trial at her guilty plea is indeed fatal.

I respectfully concur.

      . In Guzman, supra, the defendant was given his Boykin rights; the trial court found that the failure to notify the defendant of the mandatory minimum sentence was harmless error.

      . In Feaster, supra, Judge Drew dissented from the reversal of a conviction on the same grounds raised here, noting that a transcript of the arraignment would likely reveal that the defendant was notified of his right to a jury trial at that court appearance. In Feast-er, the defendant entered a guilty plea to the original charges. This case differs in that the defendant pled guilty to amended charges.

      . In Morrison, the court distinguished the decision in State v. Battle, 552 So.2d 503 (La.App. 2d Cir.1989), writ denied, 559 So.2d 136 (La.1990), which upheld a guilty plea whereby the judge only informed the defendant of his right to a trial, rather than a right to a jury trial, but mentioned the jury on several occasions. The court even remarked that the jury stood ready if the defendant did not want to plead guilty.

      . We recognize that State v. Jones, 1999-2207 (La.1/29/01), 778 So.2d 1131, and State v. Guzman, supra, hold that error patent review is not available for violations of La. C. Cr. P. art. 556.1. However, here we deal not merely with a failure to comply with La. C. Cr. P. art. 556.1, but with a failure to comply with the advice of basic rights to a defendant to ensure that a guilty plea is a knowing and voluntary as required by Boykin v. Alabama, supra. Interestingly, in Boykin, the failure to adequately advise the defendant of the rights waived by pleading guilty was initially noted by the Alabama Supreme Court on its own motion.


text:
    Jerry “Pete” MERCER, Plaintiff-Appellee v. Tommy MERCER, Defendant-Appellant.
    No. 40,995-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Crawford & Joyce, by Jefferson B. Joyce, Monroe, for Appellant.
    Cotton, Bolton, Hoychick & Doughty, by David P. Doughty, Rayville, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

| Merry Mercer filed suit against his brother and defendant herein, Tommy Mercer, to compel either the transfer of one hundred shares of Snake Ridge Partnership, Inc. (Snake Ridge) stock from Tommy to him individually or payment of an alleged indebtedness totaling $15,586.93. The trial court denied exceptions of prescription, no cause of action, and no right of action and rendered judgment in favor of the plaintiff, ordering Tommy to transfer the stock certificate to Jerry. Tommy appealed. For the following reasons, we affirm the judgment of the trial court.

FACTS

Snake Ridge was incorporated on February 20, 1990, with the intent of serving as the corporate owner of immovable property for members of the Hurricane Hunting Club to use for hunting purposes. At its inception, stock certificates were issued in the names of each shareholder, including stock certificate number six evidencing Tommy Mercer’s ownership of 100 shares of stock. While none of the documents relating to the rules and regulations which govern membership in the Hurricane Hunting Club were submitted into evidence, the uncontroverted testimony presented at trial indicates that membership in the club was limited to shareholders in Snake Ridge.

Section 5.5 of the By-Laws for Snake Ridge Partnership restricts the transfer of the capital stock therein as follows:

A. If any stockholder decides to sell his stock prior to the mortgage indebtedness being satisfied in full, the sale must be to the remaining members. The price will be his pro-rata share of the original purchase price. After the mortgage has been retired, the sale must be to the remaining members at the appraised value.
I gB. In the event of the death of the shareholder, his heirs will receive his ownership interest. However, the heirs may only sell their interest to one of the other shareholders, as set forth above.

According to the evidence, Snake Ridge initially borrowed $22,000 for the purchase of land, and each shareholder was assessed his pro-rata share of the principal and interest on the loan. To make additional acquisitions, it would borrow more money and assess each shareholder his pro-rata share of the principal and interest incurred for the purchase of the land.

The evidence established that Tommy did not pay any of the principal or interest assessed to his shares as he was unable to afford same. Instead, Jerry, who also owned 100 shares of stock in Snake Ridge, paid the amounts assessed to the shares of Tommy and another brother, Kenny, to ensure that his brothers and their sons would be able to hunt on the Snake Ridge property. Presumably because of this arrangement, Jerry was given the certificates evidencing Tommy’s and Kenny’s share of ownership when the certificates were initially issued.

It is unclear from the testimony whether the initial payments made by Jerry were intended as a loan or a gift. In 2000, Snake Ridge made another purchase of land for which each holder of 100 shares was assessed $8,341.05. Jerry testified that he told Tommy he would have to pay, but Tommy said he could not afford to do so. Tommy told Jerry that if he paid, the shares would be his. Though Tommy denied Jerry’s version of events, the trial court found that when the brothers discussed the payment of the assessment in 2000, they agreed that if Jerry paid Tommy’s share, Jerry Dcould have Tommy’s shares of stock. The evidence at trial reflects that on December 26, 2000, Jerry’s wife Lorene issued a check out of their joint checking account for $16,682.10 made payable to Richland State Bank. The next day, a credit slip from Richland State Bank was completed reflecting a payment in the amount of $16,682.10 on a commercial loan owed by Snake Ridge.

However, while the stock certificates remained in Jerry’s possession, Tommy never signed the certificate or any other instrument to evidence transfer of the shares to Jerry. Snake Ridge continued to acquire property. In December 2003, Jerry presented the stock certificate to Tommy and asked him to sign it over to him or to use it as security to borrow money to pay Jerry for the Snake Ridge assessments he had paid on his behalf. Tommy took the certificate and neither signed over his shares to Jerry, nor paid him for his share of the Snake Ridge expenses.

On January 4, 2005, Jerry filed suit against Tommy seeking specific performance pursuant to their December 2000 agreement for repayment of the assessments paid by Jerry on Tommy’s behalf or transfer of the shares evidenced by certificate number six. Tommy responded by filing exceptions of prescription, no cause of action, and no right of action. Trial was held on June 20, 2005, after which the matter was taken under advisement. On July 14, 2005, the trial court issued reasons for judgment denying Tommy’s exceptions and ordering that Tommy execute a transfer to Jerry of the shares of stock in Snake Ridge represented by stock certificate number six. A judgment to this effect was signed on August 5, 2005.

l4In this appeal, Tommy argues that the trial court erred in denying the exceptions of prescription, no right of action, and no cause of action.

DISCUSSION

Prescription

The trial judge, in overruling the plea of prescription, assumed that the applicable liberative prescriptive period was three years as provided in La. C.C. art. 3494 for actions on money lent. However, finding that Tommy had pledged his shares of stock to Jerry and/or acknowledged the debt on more than one occasion, the trial court concluded that the prescriptive period was interrupted until at least December of 2003, when Tommy took possession of the stock certificate from Jerry. Accordingly, the trial court concluded that Jerry’s filing of the suit on January 4, 2005, was well within the three-year libera-tive prescriptive period.

While we find that the trial court’s overruling of the exception of prescription was not in error, we do so for different reasons. In its reasons for judgment, the trial court found that in December of 2000, Tommy and Jerry agreed that if Jerry paid Tommy’s $8,341.05 assessment, Tommy would transfer his shares to Jerry. Therefore, a perfected contract of sale existed with the concurrence of three circumstances: the thing sold, the price and the consent. La. C.C. art. 2439.

The stock of the corporation was acquired by Jerry as soon as there was an agreement regarding the object and the price, and delivery of the stock certificate was unnecessary. A stock certificate is merely paper evidence of the 1 ^ownership of the stock and is not in reality the subject of the ownership, to wit: the shares of stock. Succession of McGuire, 151 La. 514, 92 So. 40 (La.1922); Hartnett v. LGD Properties, Inc., 99-2540 (La.App. 4th Cir.5/03/00), 767 So.2d 88, writ denied, 2000-2626 (La.11/17/00), 774 So.2d 976; Dardeau v. Fontenot, 326 So.2d 521 (La.App. 3d Cir.1976). A stock certificate is prima facie evidence of corporate ownership, but it is to be distinguished from actual ownership which may be determined from all the facts and circumstances of a case. Fireplace Shop, Inc. v. Fireplace Shop of Lafayette, Inc., 400 So.2d 702 (La.App. 1st Cir.1981).

Accordingly, once a perfected contract of sale was entered into, Jerry had the right to demand and receive the certificate of stock evidencing that ownership or an action in damages if the certificate evidencing ownership of the shares could not be delivered. Finn v. Ponsaa, 308 So.2d 352 (La.App. 4th Cir.1975), writ denied, 313 So.2d 238 (La.1975); Good v. Breazeale, 148 So.2d 766 (La.App. 4th Cir.1963), app. denied, 244 La. 141, 150 So.2d 766 (La.1963). The prescriptive period to be applied in such a case, however, is res nova. Statutes of prescription must be strictly construed. Guillot v. Guillot, 346 So.2d 813 (La.App. 1st Cir.1977), writ denied, 350 So.2d 40 (La.1977). The general prescriptive period for personal actions is ten years, La. C.C. art. 3499, and provisions which establish lesser terms of prescription should be restrained to the particular cases which they regulate, and to what is expressly included in their dispositions. Lacoste v. Benton, 3 La. Ann. 220 (1848).

Because the present action is personal, not real, and our review of the statutory provisions indicates no legislative expression that a shorter | r,prescriptive term is to be applied to such an action, we conclude that an action by a purchaser of shares of stock for delivery of the stock certificate evidencing those shares is subject to a ten-year prescriptive period. Jerry’s filing on January 4, 2005, was well within that prescriptive period and, thus, the trial court did not err in overruling Tommy’s exception of prescription.

No Cause and No Right of Action

Tommy argues that Jerry’s petition fails to state a cause of action because subsection 5.5 of Snake Ridge’s corporate by-laws imposes a stock transfer restriction which prohibited Tommy from selling his shares of stock to Jerry alone and that any proposed sale would have to have been to all the other shareholders. As quoted above, sub-paragraph A of the transfer restrictions provides that a stockholder wishing to sell his stock can only do so by selling it to the “remaining members.” Whether the mortgage indebtedness of the corporation was extinguished at the time of the sale dictates whether the sale to the remaining members would have to be for the stockholders’ pro-rata share of the original purchase price or for the appraised value. Sub-paragraph B of the transfer restrictions, however, allows the heirs of a deceased shareholder to sell their inherited shares to “another shareholder.” The trial court found the reference in sub-paragraph A to the “remaining members” to be clarified by sub-paragraph B which allows the sale of a deceased shareholder’s stock to another shareholder. Because there is no apparent reason why the by-laws would make a distinction between the sale of shares of a deceased stockholder and those of |7a living one, we detect no palpable error in this interpretation by the trial court.

We also note that the stock certificates issued by the corporation only contain the following language regarding restrictions on the transfer of stock:

MAY BE SOLD ONLY TO ANOTHER SHARE HOLDER OF THE CORPORATION

At the time the sale between Jerry and Tommy took place, La. R.S. 12:57(F)(1) provided:

No by-law or other restriction on the transfer of shares, (2) no provision for compulsory offer of shares of its own stock for purchase by, or sale to, the corporation, (3) no agreement among shareholders binding on others than the parties signatory thereto, and (4) no lien or privilege in favor of a corporation on shares of its own stock, shall be recognized or enforced, unless such restriction, provision or agreement, or the right of the corporation to such lien or privilege, is set forth or summarized, or a reference thereto and information as to where the same may be inspected is contained, in the certificates representing the corporation’s shares. (Emphasis added).

Additionally, La. R.S. 10:8-204 provided and still provides:

A restriction on transfer of a security imposed by the issuer, even if otherwise lawful, is ineffective against a person without knowledge of the restriction unless:
(1) the security is certificated and the restriction is noted conspicuously on the security certificate; or
(2) the security is uncertificated and the registered owner has been notified of the restriction.

Assuming that the restriction of the bylaws is to be interpreted as prohibiting the sale of Tommy’s shares to Jerry, the failure of that restriction to appear on the stock certificate would make it unenforceable absent evidence that the parties had knowledge of the restriction. The record is lsdevoid of such evidence. Therefore, the restriction of the by-laws is not applicable to this transaction.

Lastly, even assuming Tommy sold his shares in violation of a transfer restriction of the corporation, the enforcement of such restrictions is intended for the benefit of the remaining shareholders excluded from any such sale or the corporation, not the shareholder whose sale violates the restriction. None of the remaining shareholders are contesting the sale. Tommy should not be allowed to induce Jerry to pay his debts with an offer to sell him his stock in exchange and then claim the benefit of a transfer restriction prohibiting such a sale. Accordingly, we see no error in the trial court’s denial of the exceptions of no cause of action and no right of action.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is hereby affirmed. Costs of this appeal are to be borne by Tommy Mercer.

AFFIRMED.


author: PEATROSS, J.

text:
    Mary Ann Freeman HALL, Plaintiff-Appellant v. Kambrya N. PIPKIN, et al, Defendants-Appellees.
    No. 40,993-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Mary Ann Freeman Hall, Pro Se.
    Law Offices of Harold G. Toscano, by S. Curtis Mitchell, for Appellee, Allstate Insurance Co.
    Before WILLIAMS, PEATROSS & MOORE, JJ.
   PEATROSS, J.

_[iIn this personal injury suit arising out of an automobile accident, Plaintiff Mary Ann Freeman Hall appeals a judgment in favor of Defendant Allstate Insurance Company (“Allstate”). For the reasons stated herein, we affirm.

FACTS

This case arises out of a minor automobile accident that occurred on August 21, 2001, in which Ms. Hall was allegedly injured and/or sustained aggravations to preexisting back injuries. She was a guest passenger in the back seat of an “Action Taxi” driven by Sarah Jo Peterson. The taxi was traveling down Jefferson Paige Road in Shreveport, Louisiana. As the taxi approached Ms. Hall’s residence, she leaned forward to give Ms. Peterson directions when the taxi was struck by a vehicle driven by Kambrya Pipkin. Ms. Hall testified that she “just jerked” when the taxi was struck. The investigating officer described the accident as “very minor.” Ms. Hall did not report being injured immediately after the accident.

Ms. Pipkin was uninsured. The taxi owner was insured by Universal Insurance Company (“Universal”), which provided $25,000 in coverage. Ms. Hall was insured by Allstate, which provided Uninsured Motorist coverage with a limit of $100,000. In April 2002, Allstate tendered to Ms. Hall $50,000 under its UM coverage and $5,000 under the medical pay portion of the policy. On May 14, 2002, Ms. Hall filed this suit against Ms. Pipkin, Ms. Peterson, Universal and Allstate for damages associated with injuries and/or aggravation of preexisting injuries she allegedly | ..sustained in the accident. Universal settled with Ms. Hall prior to trial for $10,000.

At trial, the issue was whether Allstate’s tender was sufficient to compensate Ms. Hall for her alleged injuries. She had back surgery in January 2002 and claims that her damages exceed the $100,000 limit of the UM policy with Allstate. -Ms. Hall contends that she suffered a low back injury and herniated disk that ultimately required surgery. Voluminous medical records and various doctors’ depositions were introduced at trial, in addition to the testimony of Ms. Hall, her son, a former boyfriend and Dr. Richard Kamm. The record was left open after the trial for the taking of additional medical depositions; however, before any depositions were taken, Ms. Hall fired her attorney and chose not to retain new counsel.

The record reveals that Ms. Hall experienced back injuries and has undergone numerous surgeries since the August 2001 accident. She had also been in at least three accidents, both prior to and after the August 2001 accident and has filed at least two other personal injury suits. She was on disability for injuries sustained in a 1994 accident.

After observing Ms. Hall’s testimony and demeanor in court, the trial judge found her not to be a credible witness, noting that Ms.. Hall appeared to be on drugs during the trial and was snapping at lawyers, was “less than candid” with the doctors and exaggerated the severity of the minor accident. Noting that Ms. Hall could not present a coherent picture of her medical history due to the extensive treatment she has received over the years and the amount of pain medication she was taking, the trial judge outlined |aMs. Hall’s medical history as follows (this history is taken verbatim from the judge’s reasons and is supported by the record):

• September 1987 — car wreck — Dr. Warren Long performs a cervical fusion on CM and C-5
• January 1994 — Florida wreck. — Dr. Long in Louisiana performs another cervical fusion on C-3-4-5-6
• 1994 — plaintiff declared “disabled”
• March 1996 — Lumbar lower back surgery and a laminectomy by Dr. Long allegedly from the 1994 wreck
• Summer of 1997 — plaintiff visits numerous doctors for “back pain” and pain medicine
• October 1997 — plaintiff is treated by a Dr. [Desmond] Hussey in Florida and gets prescription for methadone
• December 1997 and forward — plaintiff is treated by numerous doctors in Florida and Ohio; diagnosed with “chronic pain syndrome and complains of back pains and pain going to legs” by both Florida doctors and the Cleveland Clinic in Ohio
• 2000 — treated by Florida doctors — Dr. Hussey and Dr. [Mark] Gerber for sharp lower back and aching and numbness in legs and is advised that she needed surgery on L^4 and L-5. She intended to have the surgery but by her own admission [did] not follow through because of an intervening divorce.
• January 2001 — relocates to Shreveport
• May 2001 — goes to LSU Medical Center to get a referral for a neurosurgeon to have the recommended surgery
• June 2001 — LSU doctor diagnoses post lumbar laminectomy syndrome and increase methadone
• August 2001 — prior to accident — plaintiff begins receiving epidurals at Christus Schumpert
[August 21, 2001 — accident at issue]
• August 23 and 30, 2001 — 2 visits with Dr. Kamm
• September 2001 — sees Dr. Warren Long again for a myelogram who recommends surgery
• January 2002 — Dr. Donald Smith operates on L-4 and L-5 which was the same surgery recommended to her in 2000 (she did not advise Dr. Smith of this).
• July 2002 — plaintiff admitted on cross-examination that she was able to water ski
• July 31, 2002 — plaintiff is in a one-car accident caused by her own negligence
• Late 2003-2004 — plaintiff begins to see Dr. [Pierce] Nunley, who is also treating her niece

\ ACTION OF THE TRIAL COURT AND REASONS

The trial court found that Allstate has “more than fully satisfied any and all amounts that it could possibly owe” to Ms. Hall. The trial court further stated that Ms. Hall had “an extensive medical and litigation history” and was seeking to have Allstate pay her for surgery she needed long before the accident at issue in this suit. The trial court also noted that some of the bills presented by Ms. Hall relate to the treatment prior to the accident in question and some are for treatment after the accident. Ultimately, the court concluded that Ms. Hall failed to carry her burden of proving a causative link between her alleged pain and the August 2001 accident, finding that Ms. Hall suffered from the same alleged lower back and leg pain in 2000 before the accident as after the accident, but had elected not to have surgery in 2000 because of her divorce. She did suffer some muscle sprains after the 2001 accident; but, according to Dr. Kamm, this would not have exacerbated her L-4 and L-5 problems. The court found that the deposition testimony of the doctors in this case seriously undermined Ms. Hall’s testimony, and the testimony of her son, as to the severity of any injuries from this accident. In fact, the trial court stated that Allstate was very generous in its payment to Ms. Hall. Accordingly, the trial court ruled in favor of Allstate, dismissing Ms. Hall’s claims with prejudice.

DISCUSSION

Our review of the factual findings in this case are governed by the manifest error/clearly wrong standard of review. It is a well settled principle that an appellate court may not set aside a trial court’s finding of Uact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly wrong. Rosell, supra; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact 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. Rosell, supra.

The reviewing court must always keep in mind that, if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that, if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong, but whether the fact finder’s conclusions were reasonable. Stobart, supra; Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305.

|fiIn addition, the assessment of damages, i.e., the finding of the appropriate amount of damages in a case, is also a factual determination entitled to great deference on review. The role of the appellate court in reviewing general damages is not to decide what it considers to be an appropriate award of damages, but, rather, to review the exercise of discretion by the lower court. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

Before recovery can be granted for aggravation of a preexisting condition, a causative link between the accident and the victim's current status must be established. Lamb v. Berry, 35,347 (La.App.2d Cir.12/28/01), 803 So.2d 1084. The test for determining a causal relationship between an accident and subsequent injuries in a personal injury suit is whether the plaintiff proved through medical testimony that it was more probable than not that subsequent injuries were caused by trauma suffered in the accident. Id. The plaintiff is aided in establishing this burden by the legal presumption that a medical condition producing disability is presumed to have resulted from the accident if, before the accident, the injured person was in good health, but the disabling condition manifested itself shortly after the accident. Id., citing Williamson v. St. Francis Medical Center, Inc., 559 So.2d 929 (La.App. 2d Cir.1990).

In the case sub judice, the trial court determined that Ms. Hall failed to carry her burden of proving that the August 2001 accident was the cause of any alleged leg pain (or the condition of her lumbar spine). The trial court further found that Ms. Hall was not a credible witness “based on her [ 7demeanor in court and her testimony.” As previously mentioned, the court noted that Ms. Hall was “less than candid with the doctors she saw after this accident about all her prior history and she also exaggerated the severity of the minor accident.” Noting Ms. Hall’s extensive accident, medical and litigation history, the court stated that she appeared to be “under the influence of drugs during the trial” and “could not present a coherent picture” of her treatment. After reading the transcript, and remaining mindful that the trial court is in the best position to observe the demeanor of the witness and weigh her credibility, we cannot say that the decision to discredit her testimony was an abuse of discretion.

Our review of the trial testimony, depositions and physical evidence submitted to the lower court reveals that the record supports the lower court’s determination that Ms. Hall did not carry her burden of proof. As in Lamb, supra, the only evidence of Ms. Hall’s pain is her self-serving testimony and the testimony of her son, whom the trial judge found to be not credible, and her boyfriend, who did not even know Ms. Hall until well after the August 2001 accident. In addition, the record is clear, by Ms. Hall’s admission, that the surgery performed on Ms. Hall after the August 2001 accident was the same surgery that had been recommended prior to the accident, but was delayed by Ms. Hall for personal reasons. Moreover, Dr. Warren Long testified that the myelogram taken prior to the accident was virtually the same as the myelogram taken after the accident. Furthermore, Dr. Donald Smith, the neurosurgeon who performed the January 2002 back surgery on Ms. Hall, testified in deposition that her back condition was |sdegenerative in nature and not caused by acute trauma. This record provides a reasonable basis for the determination that there was insufficient proof of a causal link between any back or leg pain and the August 2001 accident.

Finally, we acknowledge, as did the trial court, that the testimony supports that Ms. Hall suffered some muscle spasms and soft tissue swelling in the days immediately following the August 2001 accident. Dr. Kamm testified that he felt some swelling and spasms in his initial examination of Ms. Hall days after the accident and attributed these conditions to trauma sustained in the accident. One week later, Dr. Kamm re-examined Ms. Hall and made objective findings that the muscle spasms had ceased and the soft tissue swelling was improved. Her activity level at the one week follow-up visit had increased significantly as well. The trial court’s conclusion that Allstate’s tender of $50,000 adequately compensated Ms. Hall for these injuries is reasonable.

In summary, the record reveals a reasonable factual basis for the trial court’s findings. The conclusions drawn by the trial court are well supported by the record and will not be disturbed on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at Mary Ann Freeman Hall’s cost.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. David DISOTELL, Appellant.
    No. 40,989-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.
    Rehearing Denied June 23, 2006.
    Indigent Defender Board, by Jack “Buddy” Slaid, Louisiana Appellate Project, by Peggy Sullivan, for Appellant.
    J. Schuyler Marvin, District Attorney, Marcus Patillo, Charles Smith, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ.
   MOORE, J.

I/The defendant, David Disotell, pled guilty to attempted possession of a Schedule I CDS with intent to distribute, reduced from the original charge of possession with intent. He was sentenced to three years at hard labor. He now appeals alleging the sentence is excessive. Our review of the record reveals a constitutionally defective plea. Accordingly we vacate and set aside the conviction and sentence, and remand to the trial court for further proceedings.

FACTS

On June 10, 2004, the defendant knowingly and intentionally attempted to distribute marijuana, a Schedule I CDS. The defendant pled guilty to this charge and the facts recited in court constituting the crime. He was subsequently sentenced to three years at hard labor. He appeals the sentence as excessive.

DISCUSSION

In order for a guilty plea to be valid, the accused must make a knowing and intelligent waiver of three constitutionally guaranteed fundamental rights. Those rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nuccio, 454 So.2d 93 (La.1984); State v. Jones, 28,929 (La.App. 2 Cir. 4/2/97), 691 So.2d 858. A guilty plea will not be considered free and voluntary unless the court advises the defendant of the triad of these rights as explained in Boy-kin, supra, and Louisiana jurisprudence.

[gin this instance, the transcript of the guilty plea hearing reveals that, although the defendant was informed of his right to a trial, he was not informed of his right to trial by jury, in violation of Boykin, supra. For this reason, the conviction and sentence must be vacated and set aside. State v. Feaster, 33,879 (La.App. 2 Cir. 11/1/00), 779 So.2d 761; State v. Kunz-man, 31,976 (La.App. 2 Cir. 5/5/99), 741 So.2d 112; see also State v. Walker, 32,342 (La.App. 2 Cir. 9/24/99), 747 So.2d 133, writ denied, 00-0999, 773 So.2d 725 (La.11/13/00). (Following Kunzman, supra, the court vacated habitual offender adjudication when the minute entry from a prior plea showed that the defendant had merely been informed of his “right to trial.”) Because the conviction and sentence is invalid, we pretermit discussion of the assigned errors.

CONCLUSION

The failure to advise the defendant of his right to a trial by jury is fatal to the conviction in this case and the sentence based thereon. Accordingly, we vacate and set aside the conviction and sentence, and remand to the trial court for further proceedings.

CONVICTION AND SENTENCE VACATED AND SET ASIDE; REMANDED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, DREW, and MOORE, JJ.

Rehearing denied.


text:
    Eddie STATEN, Et Ux, Plaintiffs-Appellants v. Dorothy McNEAL and Allstate Insurance Company, Defendants-Appellees. Allstate Insurance Company and Dorothy McNeal v. Eddie J. Staten, Defendants-Appellees.
    Nos. 41,117-CA, 41,118-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Anthony J. Bruscato, Monroe, for Appellants.
    The Boles Law Firm by: Walter C. Dunn, Jay P. Adams, Monroe, for Appel-lees, Allstate Insurance Co. and Dorothy McNeal.
    Theus, Grisham, Davis & Leigh L.L.P., by: James M. Edwards, Clint R. Hanchey, Monroe, for Appellee, McCoy Corporation, d/b/a McCoy’s Building Supply.
    Before GASKINS, PEATROSS <& LOLLEY, JJ.
   PEATROSS, J.

hThis case arises from a suit filed by Eddie Staten against Dorothy McNeal, her homeowner’s insurer, Allstate Insurance Company (“Allstate”), and McCoy’s hardware store for injuries Mr. Staten sustained while performing flooring work in Ms. McNeal’s house. After a trial on the merits, the trial judge found that responsibility for the accident lay with Mr. Staten and McCoy’s, 70 percent and 30 percent, respectively. He further found Ms. McNeal and Allstate to be without liability. From this ruling, Mr. Staten appeals. For the reasons set forth herein, we affirm.

FACTS

In December 1999, Ms. McNeal hired Mr. Staten, a handyman, to lay a new vinyl floor in her kitchen. Ms. McNeal agreed to provide the supplies for the job and pay Mr. Staten approximately $80 for his services. She had previously employed Mr. Staten on a number of occasions, for a myriad of tasks around her home, including, most notably, to lay vinyl flooring in her laundry room some twenty years earlier. By his own admission, Mr. Staten had been in the flooring business for some 25 or more years.

The pair went to a local McCoy’s hardware store to buy a sheet of vinyl and the accompanying supplies needed for the job. Mr. Staten noticed that the store did not have the brand of glue (a non-flammable brand) he normally used for such a job, so he consulted a McCoy’s employee as to which alternative brand could be used. The employee retrieved a can of Dglue and recommended it be used for the project. Unfortunately, the McCoy’s employee was mistaken. The glue he suggested was, in fact, highly flammable and not suitable for this project (without proper precautions being taken).

Ms. McNeal and Mr. Staten admit to purchasing the glue without reading the label on the can, which was clearly marked “flammable.” After returning to Ms. McNeal’s house, Mr. Staten began the work, without having opened a window or taken similar ventilation precautions. While he was applying the glue, the vapors from the can ignited, causing an explosion, which left Mr. Staten seriously injured and caused nearly $30,000 in damages to Ms. McNeal’s home.

Mr. Staten and his wife sued Ms. McNeal and Allstate for his injuries and Allstate and Ms. McNeal, in turn, sued Mr. Staten for the damages to her house. The suits were consolidated. Allstate and Ms. McNeal also sued McCoy’s. After the one-year prescriptive period had run, Mr. Staten amended his petition and sued McCoy’s hardware store as well.

For some time during this litigation, it was uncontested that the explosion was caused by a pilot light in the water heater, which was located in the laundry/utility room, adjacent to the kitchen. Mr. Staten’s expert, John Maroney, opined that the water heater was installed contrary to code and in violation of the heater’s warning label. More to the point, he stated | sthat the heater had not been installed 18 or more inches from the ground, as recommended by code and the warning label. To the contrary, Allstate’s “fire and origin” expert, Gary Brooks, concluded that the water heater’s warning label was ambiguous and that the pilot light from the kitchen stove, not the water heater, caused the explosion. The basis for his “stove theory” was derived from a telephone conversation with Elisha McNeal (“Dee”), Ms. McNeal’s adult daughter, who witnessed the explosion. During this telephone conversation, Dee conveyed to Mr. Brooks that she saw a fire start from the stove area and spread out across the kitchen.

A bench trial was held and Judge Alvin Sharp ruled that Ms. McNeal and Allstate were without fault; however, Mr. Staten and McCoy’s bore 70 percent and 30 percent responsibility, respectively. Mr. Staten’s claim against McCoy’s was ruled to have prescribed. Mr. Staten now appeals, assigning two errors.

DISCUSSION

Assignment of Error One (verbatim): The statements in Allstate’s pleadings as to origin of the fire are judicial confessions which are binding on Allstate.

Mr. Staten first points to Louisiana Civil Code article 1853, which states:

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.

|4From this, he argues that the record “strongly supports” that Allstate took advantage of Dee McNeal’s “lapse of memory” regarding her description of what happened and substituted its own, inaccurate version of the origin of the fire. Moreover, Mr. Staten contends that Allstate made a judicial confession that the water heater actually caused the explosion.

Mr. Staten cites C.T. Traina Inc. v. Sunshine Plaza, 03-1003 (La.12/3/03), 861 So.2d 156, to buttress this position. In C. T. Traína, supra, the court held that an admission by a party in a pleading is a “judicial confession” and is full proof against the party making it. He states that “it is obvious that Dee McNeal’s account of the fire changed several years into the litigation, under circumstances which give rise to the ... inference that her original account is correct and the modified version is incorrect.”

Ms. McNeal initially responds by citing Rosell v. ESCO, 549 So.2d 840 (La.1989), which states that a court of appeal should not set aside a trier of fact’s finding unless it was manifestly erroneous or clearly wrong. See also, Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The appellate court should not determine whether or not the fact finder’s conclusion was right or wrong, but, rather, whether or not it was a reasonable one, given the entirety of the record. Rosell, supra.

Ms. McNeal contends that Mr. Staten’s argument regarding judicial confession is misplaced. She states that Mr. Staten is simply unable to prove, with any certainty, that the ignition point was the water heater, rather than the stove. She notes that Allstate originally identified the water heater as the ignition point, but subsequently amended its pleadings, based on an 1 Berror of fact, to reflect that it was the stove, without objection or response from Mr. Staten. Accordingly, Ms. McNeal argues that no prejudice was caused to Mr. Staten in preparation for this trial.

From this, she cites Farmer’s-Merchants Bank & Trust Co. v. St. Katherine Ins., 93-552 (La.App. 3d Cir.3/9/94), 640 So.2d 353, writ denied, 94-0841 (La.5/13/94), 641 So.2d 204, in which a defendant was allowed to amend its answer nearly five years after initial filing and over objection by the plaintiff. In Farmer’s-Merchant, swpra, once amendment was allowed, judicial admission was revoked. Similarly, in Sinha v. Dabezies, 590 So.2d 795 (La.App. 4th Cir.1991), writ denied, 592 So.2d 1315 (La.1992), the court stated that a statement in a pleading may be amended if it does not prejudice the opposing party and was based on an error of fact. See also, J.H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972). Accordingly, she states that, when the trial court allowed her and Allstate to amend their pleadings, it revoked any judicial confession made prior to that point.

Ms. McNeal further argues, in the alternative, that, even if she (and the other defendants) had not amended her pleadings, it “is clear” that there would still be no judicial admission because Mr. Staten allowed the testimony of two witnesses, without objection, who stated that the ignition source was the stove. See, Hazelwood Farm, Inc. v. Liberty Oil And Gas Corp., 02-266 (La.App. 3d Cir.4/2/03), 844 So.2d 380, writs denied, 03-1585 (La.10/31/03), 857 So.2d 476 and 03-1624 (La.10/31/03), 857 So.2d 476. We agree.

| (¡In the case sub judice, the record before us reflects that Ms. McNeal and Allstate amended their respective pleadings in a proper fashion and said amendment revoked the prior pleadings.

The actual wording of Mr. Staten’s first assignment of error, stated verbatim, supra, is correct; however, it neglects the fact that Ms. McNeal and Allstate amended their respective pleadings properly, with ample notice to their opponents and with permission of the court. Allstate received the report of Mr. Brooks, after which it amended its pleading based on an error of fact — i.e., that the ignition point was the stove, not the water heater.

Mr. Staten cites C.T. Traina, supra, and, in brief, states that “... the argument here [on appeal] is not about procedural formalities ...” We disagree. We find that, even by its own wording, this assignment or error is precisely about “procedural formalities.” In C.T. Traina, supra, the court cited J.H. Jenkins Contractors, Inc., supra, and stated that a judicial confession should not estop a curative amendment absent a showing that the adversary was misled or deceived. Nothing in this record reflects that Mr. Staten was deceived or misled, nor do we see a reason which, given the standard of review set out in Rosell, supra, and Stobart, supra, convinces us to overturn the trial court’s ruling in this case. He would have this court believe that Ms. McNeal and Dee were in a better position to gauge the dangers inherent in working with flooring adhesives in closed spaces than was he. We cannot say, on this record, that that is the case. For these reasons, we reject this assignment of error.

_[jAssignment of Error Two (verbatim): The trial court’s decision is manifestly erroneous.

Mr. Staten next argues that the trial court’s ruling was manifestly erroneous for two reasons. First, he states that all evidence leads to the conclusion that the water heater, not the stove, was the ignition source. Second, Mr. Staten contends that, even if Ms. McNeal is not responsible for the (allegedly) improper installation of the water heater, the “overwhelming weight of evidence” leads to the conclusion that she is at least equally as negligent as was he. He asserts that, as a homeowner, Ms. McNeal should have been aware of the two open flames in her house; and, alternatively, that he was not in as good a position to be aware of the pilot lights. He reasserts that all witnesses at trial concurred that the warning label on the water heater was conspicuous and clearly provided that the appliance should be installed so that it was at least eighteen inches from the ground. From this, Mr. Staten emphasizes that Ms. McNeal’s water heater was not installed properly and, thus, she bears some measure of responsibility.

In support of these positions, Mr. Staten notes that the “duty to warn” is incumbent upon a manufacturer and, in turn, the “duty to read” is incumbent upon the purchaser. See, Potmesil v. E.I. DuPont deNemours Co., Inc., 408 So.2d 315 (La.App. 3rd Cir.1981), writ denied, 412 So.2d 1097 (La.1982); Hale Farms, Inc. v. American Cyanamid Co., 580 So.2d 684 (La.App. 2d Cir.1991), unit denied, 586 So.2d 537 (La.1991). Mr. Staten argues that Ms. McNeal was fully capable of reading the warning label on the water heater; and, because she did not set it more than eighteen |sinches off the ground, she is partly responsible for the explosion. Similarly, he notes that Ms. McNeal was present (at the store) when Mr. Staten admitted that the glue was not the type he normally employed. From this, Mr. Staten contends that she was just as capable of reading the “flammable” warning label as he was.

Mr. Staten also argues that the warning label on the water heater was more than conspicuous and perfectly clear in its meaning. He states that “[a]ll witnesses who were qualified to testify about building codes agreed that the hot water heater was installed in violation of code and posed a risk of ignition.” He points to the testimony of various witnesses, to wit: John Maroney, a civil engineer and expert witness for Mr. Staten testified:

Q: It did not comply with the installation instructions found on the labeling and warnings and hot water tanks sold in the nineties. Would that be correct?
A: That’s correct.

Mr. Robert Newell, an electrical engineer and fire and origin expert testified:

A: [T]he water heater should have been raised [eighteen] inches — the flames [eighteen] inches above the floor.
Q: What’s your basis for that opinion?
A: It’s the National Fuel Gas Code.

From this, Mr. Staten asserts that it is improper to argue, as Ms. McNeal does, that she should not be held accountable or responsible for failing to install and maintain her water heater under code.

|9In summation, Mr. Staten reasserts that the “overwhelming” amount of evidence points to the water heater, not the stove as the cause of the explosion in this case. Accordingly, he asks that fault be redistributed by this court as follows: Mr. Staten, 25-30 percent; Ms. McNeal 25-35 percent and McCoy’s 35-50 percent.

Ms. McNeal responds to the second assignment of error by restating Rosell, supra, and Stobart, supra. From this line of jurisprudence, Ms. McNeal notes that Dee testified that she saw the flame begin from the stove, not the water heater. She further asserts that, even assuming, arguen-do, that the explosion was caused by the water heater, Mr. Staten still failed to show that Ms. McNeal was negligent as a homeowner with respect to where the water heater was located in her house. She supports this argument by citing Kendall v. Weingarten Realty Management Co., 33,903 (La.App.2d Cir.9/27/00), 769 So.2d 171, in which this court stated that a homeowner is only liable for an unreasonably dangerous condition which exists in her home if she knew or reasonably should have known of its existence. She contends that is not the case in the instant matter.

Ms. McNeal further claims that nothing in the record reflects that Dee had been mistaken or suffered a “memory lapse” when she described, in detail, that the flames began on the stove and ultimately led to the explosion. She points out that Dee affirmatively stated that she would never forget seeing it, as it reminded her of a scene from the movie “Backdraft."

Next, Ms. McNeal points out that Allstate’s expert, Mr. Brooks, had investigated nearly 2,500 fires in his career. Mr. Brooks conceded that |inMr. Staten’s version of the story was not impossible; but, considering Dee’s statements, it was highly improbable.

Ms. McNeal further argues that Mr. Staten was actually encumbered by a higher duty than she was in this case. She cites Hoyt v. Wood/Chuck Chipper Corp., 92-1498 (La.App. 1st Cir.1/6/95), 651 So.2d 1344, writ denied, 95-0753 (La.5/19/95), 654 So.2d 695, in which the court ruled that a repairman has the duty to perform repairs in a safe manner. Mr. Staten, she argues, is a tenured repairman with a knowledge of the tools and accessories (including glue) and was, therefore, in a better position to choose the glue than was she. She notes that, by his own admission, Mr. Staten inspected the glue and took the McCoy’s employee’s word on it being fit for use on this job. Ms. McNeal states that she has no knowledge regarding flooring and should not be held responsible for the selection and application of glue in this case.

Similarly, Ms. McNeal states that Mr. Staten’s argument that her water heater was in violation of National Fuel Gas Code was rejected even by his own expert witness in this case. She argues that she did not even know of the existence of the National Fuel Gas Code, much less did she know whether or not her water heater was properly installed. She points to the trial testimony of Mr. Newell, in which the following colloquy took place:

Q: ... Based on your knowledge and experience you would not have expected Ms. McNeal to have read the gas fuel code unless she was involved in a lawsuit. Isn’t that correct?
A: That’s correct.
|nQ: You’re not aware of any publication anywhere that suggests that homeowners actually are familiar with the National Gas Fuel Code are you?
A: No.

From this, Ms. McNeal contends that Mr. Staten’s argument regarding her water heater violating code is misplaced.

In summation, Ms. McNeal asserts that there is little evidence to support a conclusion consistent with Mr. Staten’s story- and certainly not enough to overturn in light of Rosell, supra, and Stobart, supra. We agree.

Our review of the record reflects no manifest error by the trial judge in the case sub judice. Regardless of the alleged change in her story, Dee testified very clearly at trial regarding what she saw, stating during direct examination:

Q: Is there any question in your mind as we sit here today .... that [the flames] were coming from the stove as opposed to ... the utility room ... ?
A: No. I’m pretty sure it came from the area of the stove.
Q: Any doubt at all in your mind about that?
A: None at all.

Further, despite repeated attempts to show otherwise, Dee maintained that she saw the fire evolve and spread from the stove, not the water heater or utility room. She routinely maintained that it reminded her of scenes from the movie “Backdmft.” Moreover, on cross examination by McCoy’s attorney, she stated:

Q: ... Isn’t it true that you asked Mr. Staten if [he] wanted [you] to open the patio door?
A: Yes sir. It is.
|1gQ: And Mr. Staten told you no. Don’t worry about opening the patio door. Isn’t that right?
A: Yes sir.

Irrespective of the fact that Dee made no mention in her deposition of the stove or the “stove area” as the ignition source (the contradictions of which Appellant’s attorney repeatedly pointed out), the fact is that her trial testimony consistently indicated that the flames were “coming towards her” from the stove. Similarly, as mentioned above, Dee testified that Mr. Staten, an experienced handyman, refused her suggestion/offer to provide ventilation by opening a patio door. Accordingly, the evidence suggesting that the stove was the point of origin is ample. Given these facts, and the weighty standard of review set out by Rosell, supra, and Stobart, supra, we cannot say the trial judge was manifestly erroneous in ruling as he did. For these reasons, we reject this assignment of error.

McCoy’s Liability

In its brief, McCoy’s raises an additional issue with regard to its liability in this matter. It argues, alternatively, that the trial judge in the case sub judice incorrectly applied the law by finding McCoy’s 30 percent at fault.

McCoy’s points out that, under the Louisiana Products Liability Act (“LPLA”), a non-manufacturing seller of products is responsible for damages in tort only if: 1) the product he sold was defective; 2) he knew or should have known that the product he sold was defective or 3) he failed to declare its defect. See, Slaid v. Evergreen Indem., Ltd., 32,363 (La.App.2d Cir.10/27/99), 745 So.2d 793. Moreover, a non-manufacturing seller is not required to inspect a product prior to sale to determine the possibility of inherent defects or vices. Slaid, supra. Furthermore, she cites Hesse v. Champ Serv. Line, 99-1259 (La.App.2d Cir.2/2/00), 758 So.2d 245, for the proposition that a retailer has no duty to warn purchasers of product risks about which the buyer knows or should be aware. McCoy’s contends that Mr. Staten, an experienced handyman, should have been well aware that, without proper ventilation precautions, the glue he employed could ignite.

Accordingly, McCoy’s urges that Louisiana jurisprudence does not support the trial judge’s finding that McCoy’s was 30 percent liable in this case.

Initially, we note that McCoy’s did not file an answer to the appeal in this case. Our review of the record reflects no error of law by the trial judge with regards to the apportionment of liability in the case sub judice. We have already ruled that no manifest error existed in this case (see, supra). Thus, this issue is not properly before this court.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court finding no fault on behalf of Dorothy McNeal and Allstate Insurance Company; and, in turn, finding that Eddie Staten and McCoy’s hardware store were 70 and 30 percent responsible, respectively, is affirmed. Costs of this appeal are assessed to Eddie Staten, et ux.

AFFIRMED.

      . Two suits arose from this accident, but they were consolidated. This is discussed further, infra.

        . This job included laying the flooring under a gas water heater, the relevance of which will become clear, infra.

      . We note that both Ms. McNeal and Mr. Staten testified that he (Mr. Staten) did not search for the glue, but, rather, the employee searched for, retrieved and recommended it be used for laying vinyl floor.

      .Attorneys for each of these respective parties filed briefs in this case. They are collectively referred to as "Ms. McNeal” for the purposes of this opinion.

      . We note that Mr. Staten did not appeal the prescription portion of the trial judge’s ruling.


text:
    Nancy Malone FOLEY, Plaintiff-Appellant v. SPORTRAN, CITY OF SHREVEPORT, Defendant-Appellee.
    No. 40,624-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Nancy Malone Foley, In Proper Person.
    Law Offices of Ronald F. Lattier, LLC by Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   STEWART, J.

pin this workers compensation case, Nancy Foley (“Foley”) appeals the Workers Compensations Judge’s (WCJ) grant of her employer’s, Sportran/City of Shreveport (“City”), motion for summary judgment. For the reasons that follow, we affirm.

FACTS

On August 13, 2001, Nancy Foley allegedly slipped while entering a bus she was driving and fell between the bus and a curb. She apparently sustained injuries to her hip, leg, and ankle. Foley was initially treated for her injuries by Dr. Raymond Dennie at Willis Knighton WorkKare, and subsequently referred to the Work Conditioning Center for therapy under the direction of Paul Procell, an occupational therapist. Mr. Procell reported that the claimant had provided inappropriate pain behavior within therapy and determined that Foley was medically able to return to work in a light duty capacity, and was in no way disabled or otherwise unable to work. Dr. Dennie discontinued therapy and released Foley to light duty with no bus driving with a referral to an orthopedic surgeon or neurosurgeon of her choice.

Following her release from Dr. Dennie, Foley selected Dr. Gordon Mead as her orthopedist. His initial diagnostic testing revealed nothing to corroborate her subjective complaints of pain. Foley was further evaluated by Dr. M. Ragan Green, Dr. Karl Bilderback, Dr. Robert Goodman, and Dr. Roan Flenniken. None of these physicians opined that Foley was disabled or otherwise unable to work as a result of an alleged workplace injury.

|aThe trial court granted the defendant’s motion for summary judgment and this appeal ensued.

DISCUSSION

Summary Judgment

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Brown v. International Paper Co., 38,892 (La.App.2d Cir.9/22/04), 882 So.2d 1228, writ denied, 2004-2865 (La.1/28/05), 893 So.2d 78. Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). The motion should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial, then the mover may merely point out to the court the absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966(C)(2). Appellate review of the grant or denial of summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002. A plaintiff in a workers’ compensation action has the burden of establishing a work-related accident |sby a preponderance of the evidence. Emilien v. U.R. Construction, 2002-0278 (La.App. 4th Cir.10/30/02), 832 So.2d 345; Qualls v. Stone Container Corporation, 29,794 (La.App.2d Cir.9/24/97), 699 So.2d 1137; Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992); Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991). Proof by a preponderance of evidence means that the fact or cause sought to be proved is more probable than not. James v. McHenry, 36,098 (La.App.2d Cir.9/18/02), 828 So.2d 94. He must establish a causal link between the work-related accident and his injury. Rhodes v. Terrebonne Parish Sheriff, 2001-2279 (La.App. 1st Cir.6/21/02), 822 So.2d 114; Qualls, supra. If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof. Emilien, supra; Shelton v. Wall, 614 So.2d 828 (La.App. 2d Cir.1993); Williams v. Louisiana Coca-Cola Co., 94-810 (La.App. 5th Cir.3/1/95), 652 So.2d 108.

In order to meet the preponderance burden, the evidence must show sudden objective findings of an injury, rather than mere manifestation of a gradual deterioration or progressive degeneration. Qualls, supra; Jones v. AT & T, 28,059 (La.App.2d Cir.2/28/99), 669 So.2d 696.

Unfortunately for Ms. Foley, she has presented no evidence to support her claim for workers’ compensation benefits. She has been seen by no less than six doctors and none of them has opined that she is disabled and unable to return to work. In his August 31, 2001, work eondi-tioning | ¿discharge summary to Dr. Den-nie, Mr. Proeell assessed that Foley has tolerated therapy poorly without benefit because of “inappropriate pain behavior” and her inability to perform any stretches or exercises to assist with recovery of her injury. Mr. Procell recommended that Foley be discharged from therapy until these behaviors were resolved. Dr. Mead testified that at no time during his treatment of Foley did he ever assign any disability rating regarding her alleged workplace injury. He opined that she was not disabled or otherwise unable to return to her previous employment. During his treatment of Foley, Dr. Bilderback found no objective evidence of Foley’s subjective complaints. In fact, he opined that Foley presented symptom magnification. Our examination of the medical records presented by Foley’s treatment with Dr. Flenniken, and Dr. Goodman does not demonstrate any connection between the workplace injury and any of the subjective complaints of Ms. Foley.

Workers Compensation Benefits

The plaintiff also claimed disability benefits, including supplemental earnings benefits (“SEB”) and temporary total disability benefits (“TTD”). An employee is entitled to receive TTD benefits only if he proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment. Nelson v. City of Grambling, 31,303 (La.App.2d Cir.12/9/98), 722 So.2d 358; Knotts v. Snelling Temporaries, 27,773 (La.App.2d Cir.12/6/95), 665 So.2d 657; Johnson v. Temple-Inland, 95-948 (La.App. 3rd Cir.1/31/96), 670 So.2d 388. To prove a matter by clear and | sconvincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than is nonexistence. Nelson v. City of Grambling, supra; Knotts v. Snelling Temporaries, supra; Johnson v. Temple-Inland, supra.

Since the 1989 amendment to 23:1221(l)(d), maximum medical improvement alone has not been the standard for the termination or eligibility of TTD benefits. Rather, an employee is ineligible for TTD benefits when his physical condition has resolved itself to the point that a “reasonably reliable determination of extent of disability” may be made and “continued, regular treatment by a physician is not required,” or six months after the injury, whichever occurs first. Mitchell v. AT & T, 27,290 (La.App.2d Cir.8/28/95), 660 So.2d 204. However, upon reaching maximum medical improvement (“MMI”), an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB. Nelson v. City of Grambling, supra; Foster v. Liberty Rice Mill, 96-438 (La. App. 3rd Cir.12/11/96), 690 So.2d 792.

To qualify for SEB, a plaintiff is required to prove by a preponderance of the evidence that a work related injury resulted in the inability to earn 90% or more of the pre-injury wages. LSA-R.S. 23:1221(3)(a); Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The purpose of SEB is to compensate the injured employee for the wage-earning capacity he has lost as a result of his accident. Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra.

Under LSA-R.S. 23:1221(3)(a), an employer may preclude SEB by establishing that the employee is physically able to perform a certain job and that the job was offered to the employee, or that the job was available to the employee, in his or the employer’s community or reasonable geographic region. Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra. Once the employer demonstrates the employee is capable of work, and appropriate work is available, then the claimant must prove by clear and convincing evidence, unaided by a presumption of disability, that he is unable to perform the employment offered.

Ms. Foley simply has not demonstrated that she is entitled to any workers compensation benefits. We find no error in the WCJ’s grant of the defendant’s motion for summary judgment.

CONCLUSION

Based on the above, we affirm the judgment of the WCJ.

AFFIRMED.


author: SULLIVAN, J.

text:
    STATE of Louisiana v. John THOMPSON, III.
    No. KA06-473.
    Court of Appeal of Louisiana, Third Circuit.
    May 17, 2006.
    Derriel Carlton McCorvey, Attorney at Law, Lafayette, LA, for Defendant/Appellant, John Thompson, III.
    Michael Cade Cassidy, District Attorney — 31st JDC, Jennings, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SULLIVAN, J.

On March 31, 2006, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed as moot. This court ordered Defendant to respond to the rule to show cause on or before April 20, 2006, and he has failed to do so. The minutes of March 15, 2005 show that the charge, bearing trial docket number CR-288-04, was dismissed with full prejudice.

Therefore, the appeal in the above-captioned case is hereby dismissed.

APPEAL DISMISSED.