author: WARNER, J.

text:
    Thomas ABRAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D06-2326 to 4D06-2328.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2008.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

Abrams appeals two life sentences imposed upon him pursuant to the Dangerous Sexual Felony Offender Act (“DSFO Act”), section 794.0115, Florida Statutes (2004). He argues that the act is facially unconstitutional as it violates procedural due process. We hold that the act does not violate procedural due process, and the state provided proof of qualifying convictions for its application to Abrams on his conviction for lewd and lascivious battery. However, the state concedes that his conviction for lewd and lascivious conduct is not a qualifying offense under the statute. Therefore, as to this count we reverse his life sentence.

In 1994 Abrams was charged with two counts with sexual battery and indecent assault in violation of section 794.011(2), Florida Statutes (1993), and section 800.04(1), (4), Florida Statutes (1993), respectively. He pled guilty in both cases, served a nine year prison sentence, and was released on fifteen years’ probation. He was arrested in 2005 and charged in count one with violating section 800.04(4)(a), Florida Statutes (2004), by committing lewd or lascivious battery and in count two with violating section 800.04(6)(a), (b), Florida Statutes (2004), by committing lewd or lascivious conduct. A jury found him guilty of both offenses.

The state requested that the court classify Abrams as a dangerous sexual felony offender (“DSFO”) pursuant to the DSFO Act, section 794.0115, Florida Statutes (2004). The relevant portion of the DSFO Act provides:

(2) Any person who is convicted of a violation of s. 787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s. 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person:
(e) Has previously been convicted of a violation of s. 787.025; s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); s. 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that offense were committed in this state, and which is similar in elements to an offense described in this paragraph, is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment.
(6) Notwithstanding s. 775.082(3), chapter 958, any other law, or any interpretation or construction thereof, a person subject to sentencing under this section must be sentenced to the mandatory term of imprisonment provided under this section. If the mandatory minimum term of imprisonment imposed under this section exceeds the maximum sentence authorized under s. 775.082, s. 775.084, or chapter 921, the mandatory minimum term of imprisonment under this section must be imposed. If the mandatory minimum term of imprisonment under this section is less than the sentence that could be imposed under s. 775.082, s. 775.084, or chapter 921, the sentence imposed must include the mandatory minimum term of imprisonment under this section.

§ 794.0115, Fla. Stat. (emphasis added). Abrams’s counsel made a vague due process objection to the constitutionality of the statute without much argument. The court sentenced Abrams in accordance with the DSFO Act to two concurrent life terms. He also filed a rule 3.800(b)(2) motion challenging his sentence and the statute’s constitutionality, which the trial court denied. Abrams appeals.

Abrams argues that the DSFO Act is unconstitutional on its face because it provides no statutory notice, no separate hearing, and no standard of proof. An issue involving the constitutionality of a sentence is a pure question of law subject to de novo review. Russ v. State, 832 So.2d 901, 906 (Fla. 1st DCA 2002). Whenever possible, courts should construe a statute so as not to conflict with the constitution and should resolve every reasonable doubt in favor of its constitutionality. State v. Globe Commc’ns Corp., 648 So.2d 110, 113 (Fla.1994).

The section of the DSFO Act of which Abrams complains provides for mandatory sentencing based upon the nature of a defendant’s current conviction and his pri- or record. Unlike habitual offender sentencing, where the state must file a notice of its intent to seek habitual offender sentencing, see Ashley v. State, 614 So.2d 486 (Fla.1993), and the court has some discretion in the determination of habitual offender status, see section 775.084(4)(e) (court may find that habitual offender designation is not necessary for the protection of the public), no discretion exists under section 794.0115. If the defendant is convicted of a qualifying offense and has a prior qualifying offense, a mandatory sentence of twenty-five years to life is imposed. So as to make its intention unmistakable, the legislature also provided that this mandatory sentence trumps all other types of sentencing statutes which might yield a lesser sentence. § 794.0115(6), Fla. Stat.

Because the sentence is not discretionary and requires only proof of a qualifying prior conviction, the due process considerations are different from a fact-finding determination that a court may make under other habitual offender statutes. The existence of prior convictions has long been taken into consideration by sentencing judges. Both the sentencing guidelines as well as the Criminal Punishment Code scale sentences based upon prior criminal conduct. See § 921.001, et seq., Fla. Stat. (sentencing guidelines); § 921.002, et seq., Fla. Stat. (criminal punishment code). Challenges to the prior convictions on a scoresheet are routinely considered at the sentencing hearing. Years ago the Supreme Court recognized that use of out-of-court information in sentencing within statutory limits did not offend due process principles and was historically used by judges in fashioning appropriate sentences since the time of the Revolution. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). However, the “fact” of prior convictions does not implicate due process or Sixth Amendment concerns even where it results in a sentence in excess of the statutory maximum of a charged crime under a sentencing enhancement statute. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”) (emphasis added).

With this background, we can address all of Abrams’s procedural due process complaints. As we noted in Rollinson v. State, 743 So.2d 585, 589 (Fla. 4th DCA 1999), “Procedural due process requires that an accused have notice and an opportunity to be heard.” Abrams contends that the statute does not provide written notice of its application. However, “publication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions.” State v. Beasley, 580 So.2d 139, 142 (Fla.1991); see also Rollinson, 743 So.2d at 589; W.J. v. State, 688 So.2d 954, 956 (Fla. 4th DCA 1997). The supreme court has also rejected this same notice argument when raised against the prison releasee reoffender statute, which also does not require written notice. See Speed v. State, 779 So.2d 265 (Fla.2001). As the DSFO Act was passed prior to Abrams’s commission of the second offenses, he was on notice of the increased penalty attached to his criminal conduct.

Abrams also had notice and an opportunity to be heard on his sentence. Florida Rule of Criminal Procedure 3.713 requires the disclosure of prior convictions to the defendant in advance of the sentencing hearing provided for in rule 3.720. At that hearing, each party has the opportunity to submit proof for the court’s consideration. This has long been the opportunity for a defendant to challenge the prior convictions contained on his scoresheet. In Rol-linson we held that this rule-based hearing satisfied procedural due process under the prison releasee reoffender statute. 743 So.2d at 590. The sentencing hearing satisfies Abrams’s due process opportunity to be heard on his DSFO sentence.

The statute does not contain a provision placing the burden on the state to prove the prior qualifying conviction required by the act, nor does it state the degree of proof. Abrams claims that failing to provide a specific burden of proof violates procedural due process. He cites no cases on this issue, nor have we found any to support this proposition. While we know that the reasonable doubt standard is a judicially created constitutional due process prerequisite to guilt determinations, see In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), no heightened standard of proof has been set for sentencing determinations. Considerations of the validity of prior convictions are generally determined by a preponderance of evidence. See, e.g., Oldacre v. State, 509 So.2d 1343, 1344 (Fla. 1st DCA 1987) (“Allegedly uncounseled convictions may not be used to calculate a defendant’s presumptive guidelines sentence absent proof by a preponderance of evidence that the convictions were counseled or that counsel was validly waived.”) (emphasis added). Although the DSFO Act does not provide a standard of proof, we see no impediment to its constitutionality for this omission, which may be supplied by case law.

Finally, Abrams complains about the quality of evidence used to determine that he qualified for DSFO sentencing. This is not a matter of due process, and he did not object to it at trial. It is hard to see how he could complain, since he was being prosecuted for violation of probation on the prior qualifying charges at the same time he was found guilty on the current charges. There was clearly competent substantial evidence in the record to support his sentencing.

However, the trial court sentenced him to life both on his conviction in count one for violating section 800.04(4)(a), Florida Statutes (2004), and in count two for violating section 800.04(6)(a), (b), Florida Statutes (2004). In order to qualify as a DSFO, section 794.0115 provides that the most recent conviction must be based on a violation of a list of crimes, including section 800.04(4) or (5). § 794.0115(2), Fla. Stat. Section 800.04(6) is not included in this list. The state concedes that Abrams’s conviction under section 800.04(6), Florida Statutes (2004), does not qualify him for sentencing pursuant to the dangerous sexual felony offender act.

We therefore reverse his sentence on count two and remand for resentencing. We affirm his conviction and sentence on count one.

HAZOURI, J., and CHUMBLEY, DOUGLAS J., Associate Judge, concur.

      . These charges also resulted in an affidavit of violation of probation as to the 1994 convictions. After trial, the court revoked his probation and sentenced Abrams to twenty-five years on each of the prior convictions. Those sentences are not the subject of this appeal.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Mario LOMBARDO, Petitioner, v. Harry Richard HAIGE, Respondent.
    No. 2D07-999.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.

      Albert B. Lewis of Piper, Karvonen, Lewis & Schafer, St. Petersburg, for Petitioner.
    Warren J. Knaust of Knaust & Associates, P.A., St. Petersburg, for Respondent.
   ALTENBERND, Judge.

Mario Lombardo petitions for certiorari review of a circuit court order that “affirmed” a county court judgment awarding attorneys’ fees to Harry Richard Haige. The circuit court “affirmed” the judgment on the theory that the notice of appeal had been untimely filed. This case contains an unusually large number of procedural errors and oddities. As explained below, we treat the order affirming the county court judgment as an order dismissing the appeal for lack of jurisdiction, and we treat the petition for certiorari to this court as a petition for mandamus. We grant the petition for mandamus because the appeal was timely filed.

I. PROCEEDINGS IN THE COUNTY COURT

Mr. Lombardo is Mr. Haige’s landlord (Landlord). He brought suit against Mr. Haige, his tenant (Tenant), in county court. He sought possession of the leased premises in count I and monetary damages in count II. On January 27, 2006, the county court entered an order that “finally dismissed” this “cause.” Although that order has some of the indicia of a final appeal-able order, the county court entered an “order clarifying dismissal” on March 27, 2006, explaining that count I for possession had been dismissed but that count II, the claim for monetary damages, remained pending.

Because both the count for possession and the count for monetary damages relate to the lease agreement, this order of dismissal was, at best, a partial final judgment. See Fla. R.App. P. 9.110(k). Especially in light of the explanation in the order of clarification, however, it is clear that the order of dismissal was not an appealable order. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99-100 (Fla.1974); DeMartino v. Simat, 948 So.2d 841 (Fla. 2d DCA 2007). The Landlord did not appeal this order.

On February 1, 2006, the Tenant filed a motion to tax costs and attorneys’ fees. The content of the motion suggests that the Tenant’s counsel believed that the county court had dismissed the entire lawsuit. On March 1, 2006, the county court entered an order awarding the fees and costs to the Tenant.

It is noteworthy that the order awarding fees and costs is not a final order, but merely a nonfinal order setting the amount of fees and costs, following the earlier nonappealable partial final judgment. It does not contain language permitting enforcement by execution or otherwise. Given that the Landlord still had a pending claim for unpaid rent when this order was entered, one would expect that the Landlord might eventually have the option to offset the fees and costs from any judgment the Landlord received for unpaid rent.

The Landlord filed a motion for rehearing from the order awarding fees and costs. At approximately the same time, the Landlord filed a motion to clarify whether the order of dismissal was intended to be an order dismissing the entire lawsuit. The motion for clarification resulted in the order of March 27, 2006, explaining that count II had not yet been resolved and that the lawsuit remained pending.

On April 3, 2006, the Tenant moved for entry of a final judgment against the Landlord on the earlier order awarding costs and fees. On April 25, 2006, the county court entered that judgment, which is the judgment that the Landlord appealed to circuit court.

The Landlord filed a timely motion for rehearing from this judgment. The filing of this motion for rehearing tolled the time for the Landlord to appeal the judgment. See Fla. R.App. P. 9.020(h). The county court entered an order on May 31, 2006, denying the motion for rehearing, and the Landlord then appealed the judgment to circuit court on June 6, 2006.

II. THE PROCEEDINGS IN CIRCUIT COURT

The appeal in circuit court proceeded on some false assumptions about the finality of the various orders entered in the county court. Ultimately, the circuit court issued a written opinion that purports to affirm the county court on the theory that the circuit court has no jurisdiction over the appeal. In its order affirming the judgment of attorneys’ fees, the circuit court thoroughly detailed the timeline of events and filings and then concluded that it did not have jurisdiction to consider the merits of the Landlord’s appeal. The circuit court’s reasoning was based on a belief that the original order awarding costs and fees was a final order and that the Landlord had not timely appealed that order following the denial of rehearing on March 27, 2006. The Landlord filed a petition for writ of certiorari in this court to review the circuit court’s appellate order.

III. OUR REVIEW IN THE DISTRICT COURT OF APPEAL

The Landlord filed this appellate proceeding seeking a petition for writ of certiorari as if it were a typical “second-appeal” or “second-tier” certiorari proceeding. This is understandable because the circuit court claimed it was “affirming” the county court. Its reasoning, nevertheless, establishes that it declined to review the merits of the appeal because it decided that the appeal was untimely. Thus, the affirmance was actually an order of dismissal.

When an appellate court declines to review the merits of an appeal on these grounds, the more appropriate remedy is mandamus. See Griffin v. Sistuenck, 816 So.2d 600 (Fla.2002). Accordingly, we elect to treat the petition as a petition for writ of mandamus. See Fla. R.App. P. 9.040(c). We grant the writ because the Landlord’s appeal was a timely appeal of a final judgment awarding attorneys’ fees.

Simply stated, the county court first entered a nonfinal and nonappealable order of dismissal. It then entered an order on costs and fees that also could not be appealed. See Coffey v. Evans Props., Inc., 585 So.2d 960, 961-62 (Fla. 4th DCA 1991). None of these earlier orders commenced a period in which to file an appeal. The first order that was appealable was the judgment entered on the Tenant’s motion for entry of final judgment and which entered monetary sums “for all of which let execution issue.” The Landlord sought rehearing in a timely fashion after the filing of that judgment and then timely appealed when the county court denied rehearing. Thus, the circuit court erred in dismissing this appeal without reviewing its merits.

On remand, the circuit court will be reviewing a final judgment awarding fees and costs that was entered prior to a final judgment on the merits. We express no opinion on the merits of that appeal, but the oddity of this procedural posture is hard to overlook. In effect, this judgment is another partial final judgment. See Elder Care Health Servs., L.L.C. v. Losasso, 810 So.2d 994 (Fla. 4th DCA 2002) (dismissing appeal of similar final judgment awarding fees that trial court had already vacated).

We note that the First District has held that an order granting partial summary judgment, which entered a judgment for $181,434.63 plus prejudgment interest, “for which such sum let execution issue” was not an appealable order under the reasoning of S.L.T. Warehouse because the order was interrelated with matters still pending in the trial court. See Raymond James & Assocs., Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003). We have considerable doubt about the correctness of this holding because we cannot fathom how one can wait to appeal an order upon which execution can enter.

We conclude, however, that our scope of review does not give us power to address the correctness of Godshall at this point because the circuit court dismissed the appeal on the theory that it was untimely, not on the theory that it was premature. Even if Godshall is correct in holding that such an order is not appealable as a partial final judgment, an order permitting execution to issue before the entry of the final judgment would seem to be reviewable by certiorari. On remand, the circuit court must consider the notice of appeal as timely and appropriate to invoke its jurisdiction, but it may then consider whether the proper mechanism for review is actually certiorari. See Fla. R.App. P. 9.040(c).

Petition for writ of mandamus granted with instructions to reinstate appeal from county court.

NORTHCUTT, C.J., and VILLANTI, J., Concur.

      . The Landlord’s decision to provide an appendix that is not in chronological order and does not contain a copy of the complaint filed in county court has not made our task easier. We conclude, however, that the limited record is sufficient to resolve this case.

      . See, e.g., Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281 (Fla. 2d DCA 2005).

      . An order entitling a party to immediate monetary relief prior to final judgment is not an appealable, nonfinal order except in the context of circuit court orders entered in family law matters. Fla. R.App. P. 9.130(a)(3)(C)(iii).


author: DAVIS, Judge.

text:
    Horace M. WHITTLESEY, Jr., Appellant, v. Estelle M. WHITTLESEY, n/k/a Estelle Mirande, Appellee.
    No. 2D06-5220.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2008.

      Lorena L. Kiely of Law Office of Lorena L. Kiely, Tampa, for Appellant.
    Jeanie E. Hanna of Ware Law Group, P.A., Tampa, for Appellee.
   DAVIS, Judge.

In this action for attorney’s fees arising out of dissolution of marriage proceedings, Horace M. Whittlesey, Jr. (the Husband), challenges the trial court’s order granting the motion of Estelle M. Whittlesey, n/k/a Estelle Mirande (the Wife), requesting $82,752.28 in attorney’s fees and costs. The Wife concedes that reversal is required.

After the trial court entered a final judgment of dissolution of marriage, the Wife appealed, raising several issues regarding the equitable distribution and alimony awards. In Whittlesey v. Whittle- sey, 954 So.2d 1231 (Fla. 2d DCA 2007), this court reversed and remanded based on the determination that the trial court had used the wrong cutoff date for valuing the parties’ assets. However, in awarding the Wife $82,752.28 in attorney’s fees, the trial court had premised its determination of entitlement on the Wife’s need and the Husband’s ability to pay those fees under the original equitable distribution scheme, which this court has now reversed. Because the trial court’s determination of entitlement to fees was based on the now reversed equitable distribution scheme, the trial court’s determination of entitlement to fees must also be reversed. Accordingly, we reverse and remand with directions to the trial court to reconsider the issue of entitlement to attorney’s fees in light of the equitable distribution scheme established on remand from Whittlesey, 954 So.2d 1231.

Although the Husband contends that the trial court’s findings as to the reasonableness and necessity of the fees should also be reversed, we disagree. Our opinion in Whittlesey did not implicate the trial court’s findings as to the reasonableness and necessity of the fees accrued prior to September 18, 2006; only the entitlement to those fees was affected. We decline to address the reasonableness and necessity of the fees.

The Husband also claims that the trial court improperly failed to reduce the attorney’s fee award by amounts that he previously paid. In light of our decision to reverse the attorney fee award, this issue is moot. However, the Husband may raise this issue on remand when the trial court reconsiders the issue of entitlement to fees.

Finally, the Husband argues that the trial court erred in requiring him to pay the attorney’s fee award within twenty days of the date of the decision. This issue is moot as well given our decision to vacate the fees awarded and remand for reconsideration of the issue of entitlement to fees.

Reversed and remanded.

ALTENBERND and STRINGER, JJ., Concur.


author: SALCINES, Judge.

text:
    Marilyn SCHROETER, Appellant, v. CINCINNATI INSURANCE COMPANY, Appellee.
    No. 2D05-4516.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2008.

      Hans Kennon of Morgan and Morgan, P.A., Orlando, for Appellant.
    Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellee.
   SALCINES, Judge.

Marilyn Schroeter appeals the final summary judgment entered in favor of Cincinnati Insurance Company on her cause of action for breach of contract. We reverse the summary judgment because there remains a disputed, material issue of fact which must be resolved by the trier of fact.

Ms. Schroeter was involved in an automobile accident on October 2, 2002. At that time she had a policy with Cincinnati Insurance Company, and she informed it of the accident. Immediately after the accident the vehicle was towed to International Motor Cars Inc. in Sarasota for an appraisal and repair estimate. The record contains a “Repair Order” from International Motor Cars dated October 2, 2002, with a notation “Total Loss” in the column designated for part numbers and for the description of repairs to be performed on the vehicle.

Ms. Schroeter’s complaint alleged that Cincinnati Insurance breached its contract under the terms of the insurance policy by refusing to declare her vehicle a total loss or to pay for additional necessary corrective repairs. Cincinnati Insurance filed an answer and a motion for summary judgment claiming it had not breached the contract. In the motion for summary judgment, Cincinnati Insurance asserted that it had fully performed under the terms of the contract by directly paying Ms. Schroeter for the cost of the property damage repair to her vehicle because the cost of repairs did not exceed the value of the vehicle. It alleged that it was her election to have the vehicle repaired rather than retaining those funds and selling the salvage of the vehicle.

In her memorandum in opposition to Cincinnati Insurance’s motion for summary judgment, Ms. Schroeter disputed these allegations. She testified in her deposition, filed in opposition to the motion for summary judgment, that after the vehicle had been examined by International Motor Cars she was notified by an employee of that company, Ken Walensky, that the vehicle had been declared a total loss. She relayed this information to Michael Mann, the Cincinnati Insurance claims adjuster assigned to her claim. Ms. Schroe-ter stated in her deposition that Mr. Mann refused to accept International Motor Cars’ determination that the car was a total loss and directed her to get a second opinion. Ms. Schroeter declared that she did not want to have her car repaired and only obtained a second opinion at the insistence of Mr. Mann after he refused to declare her vehicle a total loss. Cincinnati Insurance denied that the vehicle was a total loss and claimed the appraisal and estimate for repairs was never completed by International Motor Cars.

This court reviews de novo an order granting summary judgment, and we must draw every inference in favor of the party against whom the summary judgment was entered. See Galaxy Fireworks, Inc. v. Bush, 927 So.2d 995, 996 (Fla. 2d DCA 2006). Based on this standard of review, we hold that there is conflicting evidence precluding the entry of summary judgment with regard to whether International Motor Cars in fact declared the vehicle to be a total loss and whether Cincinnati Insurance refused to accept that determination and pay the value of the vehicle at the time of the loss in accordance with the terms of the insurance policy. Accordingly, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

LaROSE, J., and STODDARD, RALPH C., Associate Judge, Concur.

      . Ms. Schroeter raised a total of nine issues on appeal. We have determined that there are no material issues of disputed fact concerning the other issues she has raised.


author: SUAREZ, J.

text:
    A.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1467.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   On Confession of Error

SUAREZ, J.

A.C. appeals the trial court’s imposition of twenty dollars in costs pursuant to section 775.083(2), Florida Statutes (2006). Based on the State’s Confession of Error we reverse this portion of the trial court’s imposition of costs and remand for the trial court to delete the twenty dollars in costs.

Reversed and remanded.


author: PER CURIAM.

text:
    STATE of Louisiana v. Glynn JUNIORS, Jr.
    No. 2007-KP-2400.
    Supreme Court of Louisiana.
    Jan. 3, 2008.
   PER CURIAM.

Granted. The district court is directed to recall the warrant of execution set for January 16, 2008. The district court is ordered to refrain from issuing a new warrant of execution until counsel has been appointed to represent relator and has had reasonable opportunity to pursue promptly relator’s post-conviction remedies. The district court is further ordered to conduct a hearing immediately with the Louisiana Indigent Defense Assistance Board for the purpose of appointment of counsel as directed by the Court in State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291. See R.S. 15:149.1; R.S. 15:151.2(E)(2); see also State ex rel. Robertson v. State, 00-1059 (La.4/26/00), 760 So.2d 1163.


author: GUIDRY, J.

text:
    Ray FRISBY v. Gustav MUGNIER.
    No. 2006 CA 2288.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Writ Denied Dec. 7, 2007.

      Thomas H. Huval, Stephen C. Aertker, Jr., Covington, LA, for PlaintiffiAppellee, Ray Frisby.
    Martha D. Bowden, Jeremy D. Goux, Covington, LA, and Bryan C. Mitchell Madisonville, LA, for Defendant/Appellant, Gaston Mugnier.
    Before WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

lain this action arising from the unlawful cutting and removal of trees without landowner consent, Gustav Mugnier appeals the trial court’s judgment awarding Ray Frisby damages for restoration of his property. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mugnier and Frisby own adjacent property in Covington, Louisiana. In November of 2003, Mugnier cleared out trees, brush, and undergrowth on his land, but went beyond the boundary line between the properties and cut trees on land owned by Frisby. On June 7, 2004, Frisby filed a petition for damages naming Mugnier as a defendant and claiming that Mugnier entered his property and cut and/or destroyed a number of trees. In his petition, Frisby sought damages and attorney fees pursuant to La. R.S. 3:4278.1 and “any other legal and equitable relief deemed proper in the premises.” Following a trial on January 6, 2006, the trial court signed a judgment in favor of Frisby and against Mugnier in the amount of $21,000.00 in damages, plus expert fees, costs, and judicial interest. Mugnier now appeals from this judgment.

DISCUSSION

A landowner whose timber has been removed without his consent may recover damages pursuant to La. R.S. 3:4278.1 or under general tort principles set forth in La. C.C. art. 2315. Hornsby v. Bayou Jack Logging, 04-1297, p. 5 (La.5/6/05), 902 So.2d 361, 365; First South Production Credit Association v. Georgia-Pacific, 585 So.2d 545, 549 (La.1991).

Louisiana Revised Statute 3:4278.1 provides, in pertinent part:

A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale |3or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with the specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.

Accordingly, in order for a landowner to recover treble damages from a person who unlawfully cuts, fells, destroys, removes, or diverts trees from his property under La. R.S. 3:4278.1, a plaintiff must establish the fair market value of the trees. Hornsby, 04-1297 at pp. 12-13, 902 So.2d at 369-370. There is no qualification or requirement in La. R.S. 3:4278.1 that trees that have been cut, felled, or destroyed be situated on property of a specific size, located in a specific area, or be intended for a specific use. Olsen v. Johnson, 99-783, p. 5 (La. App. 3rd Cir.11/3/99), 746 So.2d 740, 744.

Under La. C.C. art. 2315, a person may recover damages for injuries caused by a wrongful act of another. Article 2315 provides “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” A person injured by trespass or fault of another is entitled to full indemnification for the damages caused. Callison v. Livingston Timber, Inc., 02-1323, p. 3 (La. App. 1st Cir.5/9/03), 849 So.2d 649, 652. As a general rule, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may reasonably |4be incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property to its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition, or there is reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm. Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Service Company, 618 So.2d 874, 879-880 (La.1993). However, each case must rest on its own facts and circumstances as supported by proof in the record. Hornsby, 04-1297 at p. 9, 902 So.2d at 367.

In the instant case, the trial court found that La. R.S. 3:4278.1 was applicable and that Mugnier willfully and intentionally cut and felled trees on Frisby’s property without his consent. However, the trial court determined that Frisby failed to produce evidence as to the fair market value of the trees (ie., the value of the trees as timber), and accordingly it did not award Frisby treble damages. Rather, the trial court found that based on the facts pled in Frisby’s petition, he was entitled to general damages under La. C.C. art. 2315, and based on expert testimony, the court awarded replacement cost of similar trees in the amount of $17,000.00 and cost to cure the remaining damages in the amount of $4,000.00. Mugnier asserts that the trial court erred in awarding damages under La. C.C. art. 2315 when Frisby had not alleged a cause of action under that article.

Louisiana’s Code of Civil Procedure establishes a system of fact pleading. As long as the facts constituting a claim are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the “theory of the case” doctrine, under which a party must select a theory of his case or defense and adhere to it throughout litigation, has been abolished. First South Production Credit Association, 585 So.2d at 548. In his petition, Frisby alleged that Mugnier |Rcut and/or destroyed a number of trees on his property in November 2003, and Frisby sought replacement costs for the cut trees, removal of damaged trees, and “any other legal and equitable relief deemed proper in the premises.” A fair reading of Frisby’s petition is that he is seeking any damages for the cutting and removal of the trees to which it may be entitled under the facts asserted. That claim is not limited by the specific reference in the petition to La. R.S. 3:4278.1, as a demand for treble damages does not foreclose a plaintiffs right to receive a smaller damage award to which he may be legally entitled. See First South Production Credit Association, 585 So.2d at 549. Accordingly, we find Mugnier’s argument that Frisby failed to assert a claim under La. C.C. art. 2315 is without merit.

Additionally, from our review of the record, we cannot find that the trial court was manifestly erroneous or abused its discretion in awarding Frisby $21,000.00 in general damages. Frisby presented un-controverted expert testimony as to the cost for replacement of the cut trees and removal of the damaged trees. Further, there was no evidence that these costs are disproportionate to the value of Frisby’s property.

CONCLUSION

For the foregoing'reasons, we affirm the judgment of the trial court. All costs of this appeal are to be borne by the appellant, Gustav Mugnier.

AFFIRMED.

      . Mr. Mugnier filed pleadings naming himself variously as "Gustav Mugnier” and "Gaston Mugnier;” however, in his trial testimony, he stated that his name was "Gustav Mugnier”

      . In order to recover under La. C.C. art. 2315, a plaintiff must satisfy all the elements of negligence. However, Mugnier did not dispute at trial that he inadvertently cut trees on Frisby’s property. Accordingly, the only issue before this court on appeal is the proper measure of damages.

      . We also note that Frisby asserted at trial that there were other principles of law under which he had sued and that he was not limiting his claim to just La. R.S. 3:4278.1. Mugnier’s counsel did not object, but indicated his disagreement with the extent of Frisby's claim and stated that "the petition for damages speaks for itself.” Further, Frisby presented argument on the application of La. C.C. art. 2315 in his post-trial memorandum.

      . Based on our determination of this issue, we pretermit discussion of Mugnier’s remaining assignments of error regarding La. R.S. 3:4278.1.


text:
    AARON & TURNER, LLC v. Melissa Michelle PERRET.
    No. 2006 CA 2433.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Randall A. Shipp, Baton Rouge, Counsel for Defendant-Appellant Melissa Michelle Perret.
    Connell L. Archey, Jennifer A. Hataway, Baton Rouge, Counsel for Plaintiff-Appel-lee Aaron & Turner, L.L.C.
    Before: WHIPPLE, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

|gA homeowner appeals the trial court’s denial of her request for a preliminary injunction to prevent the sale of her home by executory process.

FACTS AND PROCEDURAL HISTORY

On February 28, 2001, Melissa Michelle Perret signed documents to effect the refinancing of a mortgage on her home, located at 325 Westmoreland Drive in Baton Rouge, Louisiana. In conjunction with the transaction to refinance her home, Ms. Perret executed a promissory note in favor of ABN AMRO Mortgage Group, Inc. (ABN AMRO) and an act of mortgage on her home to secure payment of the promissory note. Thereafter, $40,000 was disbursed to and on behalf of Ms. Perret to complete the transaction. The law firm of Aaron & Turner, L.L.C., represented by Bruce K. Turner, an attorney with the firm, acted as the closing agent for the transaction. Unbeknownst to Ms. Perret, the funds disbursed to and on her behalf during the transaction were advanced by Aaron & Turner, L.L.C.

Following the refinance transaction, Ms. Perret attempted to remit payment to ABN AMRO in accordance with the terms of the mortgage agreement; ABN AMRO, however, refused payment on the basis that it had no record that Ms. Perret was indebted to it Over the course of the next few years, Ms. Perret continued to inquire about the mortgage in order to remit payment without success. Finally, in 2005, Ms. Perret asked a friend, who was a financial advisor, to investigate the matter for her. The friend eventually contacted Aaron & Turner, L.L.C. to learn if the law firm had any | ¡¡information concerning why ABN AMRO was not acknowledging the debt.

As a result of this inquiry, Aaron & Turner, L.L.C. discovered that the money disbursed to and on behalf of Ms. Perret in 2001 to refinance her home was not advanced by ABN AMRO, but was advanced by the law firm from its client’s trust account. It was further discovered that ABN AMRO had never advanced any monies to Aaron & Turner, L.L.C., either prior to or following the loan closing, to fund Perret’s mortgage refinance. In light of this knowledge, Aaron & Turner, L.L.C. demanded that Ms. Perret pay the total outstanding indebtedness due on the loan and further demanded that ABN AMRO assign the note and mortgage executed by Ms. Perret in favor of ABN AMRO to the law firm.

By an act of assignment dated February 9, 2006, ABN AMRO transferred to Aaron & Turner, L.L.C. all its “rights, title, interest, privileges and rights of action under the note, the mortgage, and attendant security rights” in the note and mortgage executed by Ms. Perret in 2001. Ms. Per-ret, however, did not remit payment as demanded and on May 26, 2006, Aaron & Turner, L.L.C. filed a petition for executo-ry process against Ms. Perret for the seizure and sale of her home. After considering the petition and documents attached thereto, the trial court issued an order wherein it appointed Aaron & Turner, L.L.C. “keeper” of Ms. Perret’s home and further directed that a writ be issued to the Sheriff for the seizure and sale Ms. Perret’s home.

Ms. Perret, in turn, filed a “Petition for Injunction and Declinatory Exception of Lis Pendens” to vacate the appointment of Aaron & Turner, L.L.C. as keeper of her home and to permanently enjoin the seizure and sale of her home by executory process. At the hearing on Ms. Perret’s hpetition, the trial court initially decreed, in open court, that it would enjoin the seizure and sale of Ms. Perret’s home and expressed hope that the dispute would be “worked out” in the separate action filed by Aaron <& Turner, L.L.C. prior to it pursuing its claims against Ms. Perret by executory process. However, following a subsequent settlement conference at which the parties were unable to reach an agreement, the trial court reconsidered its earlier ruling and decided to deny Ms. Perret’s exception and petition for injunctive relief, which decree was reduced to a written judgment signed by the trial court on September 13, 2006. It is from that judgment that Ms. Perret now devolutively appeals.

MOTION TO DISMISS APPEAL

While this matter was pending, Aaron & Turner, L.L.C. filed a motion to dismiss the appeal as moot and attached to the motion evidence that Ms. Perret’s home had been sold at a sheriffs sale. Thus, Aaron & Turner, L.L.C. assert that Ms. Perret’s devolutive appeal of the judgment denying her request for injunctive relief cannot afford her any practical relief and that the appeal should be dismissed. The motion was referred to this panel for consideration in conjunction with the merits of the appeal.

Louisiana Code of Civil Procedure article 2642 provides “[djefenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale ... or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.” In this case, Ms. Perret asserted her defenses and objections to the executory proceedings instituted , by Aaron & Turner, L.L.C. by a petition for injunction, rather than by sus-pensively appealing the |Rorder directing the seizure and sale of her home, thereby risking the loss of her home in the event her petition for injunction was denied.

In United Companies Lending Corporation v. Hall, 97-2525 (La.App. 1st Cir.11/6/98), 722 So.2d 48, this court held that a devolutive appeal of a judgment denying a petition for injunctive relief was rendered moot upon the occurrence of the sale of the petitioner’s immovable property by the sheriff, which sale the petitioner had sought to enjoin. In so finding, this court dismissed the petitioner’s devolutive appeal, explaining:

In the interest of judicial economy, this Court will not review a case when only injunctive relief is sought and the need for that relief has ceased to be a justicia-ble issue. Any decision made by us now would be advisory.

United Companies Lending Corporation, 97-2525 at p. 4, 722 So.2d at-50.

We are therefore constrained to find that the matter pending before us has been rendered moot upon the occurrence of Ms. Perret’s home being sold by the sheriff. Any pronouncement by this panel on the propriety of the executory proceedings and the trial court’s denial of Ms. Perret’s petition for injunction would be merely advisory and could not bring about the cancellation of the sheriffs sale as prayed for by Ms. Perret in her petition. Accordingly, we grant Aaron & Turner, L.L.C.’s motion to dismiss Ms. Perret’s appeal as moot.. Costs are to be equally assessed to the parties.

APPEAL DISMISSED.

HUGHES, J., dissents.

      . According to the settlement statement introduced into evidence, $31,532.42 of the funds were disbursed to Hibernia to pay off the existing mortgage on the home, $6,011.52 was disbursed to Ms. Perret, and the remaining $2,456.06 was disbursed in payment of various settlement charges.

      . William R. Aaron, another attorney with the firm, signed the mortgage on behalf of ABN AMRO.

      . According to the motion, Ms. Perret’s home was sold at sheriff's sale on November 15, 2006, to a third-party purchaser.


author: WELCH, J.

text:
    Robert SHORTESS v. DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS Elayn Hunt Correctional Center.
    No. 2006 CA 2313.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.

      Jill L. Craft, Baton Rouge, for Plaintiff-Appellant Robert Shortess.
    Joseph J. LaPlace, St. Gabriel, for Defendant — Appellee Department of Public Safety & Corrections.
    Robert R. Boland, Jr., Baton Rouge, for Defendant — Appellee Anne Soileau, Director of State Civil Service.
    Before: CARTER, C.J., PETTIGREW, and WELCH, JJ.
   WELCH, J.

12Plaintiff, Robert Shortess, appeals a ruling of the Civil Service Commission summarily dismissing the appeal of his termination from the Department of Public Safety and Corrections. We reverse and remand for a hearing.

BACKGROUND

In July of 2004, Mr. Shortess was hired by the Department of Public Safety and Corrections (DPSC) and worked as an investigative officer at the Elayn Hunt Correctional Center (EHCC). In January of 2006, EHCC demoted Mr. Shortess to the position of correction sergeant after he fell asleep on the job. The merits of that disciplinary action is pending before this court in Shortess v. Department of Public Safety & Corrections, docketed at 2006-1532.

By letter dated July 11, 2006, Mr. Shor-tess was notified that he was being terminated from his position as a corrections sergeant pursuant to Civil Service Rule 12.6(a)!, which, subject to the provisions of the Americans with Disabilities Act (ADA), authorizes the non-diseiplinary removal of an employee who is unable to perform the essential functions of his job because of an illness or medical disability, where the employee has exhausted fewer than eight hours of sick leave, and the duties of the job must be performed without further interruption.

In terminating Mr. Shortess, EHCC set forth the following reasons pursuant to Rule 12.6(a)l: (1) Mr. Shortess exhausted all of his sick leave and leave available under the Family Medical Leave Act; (2) Mr. Shortess’ duties had to be carried on without interruption, and his absence seriously affected EHCC’s ability to maintain adequate staff; and (3) on a form listing the essential functions of the job of corrections officer, Mr. Shortess indicated there were eight functions he could not perform.

On July 14, 2006, Mr. Shortess appealed the termination to the Commission, urging that it was not warranted and not in good faith or for legitimate cause. Later |sthat month, the referee appointed by the Commission to hear and decide the appeal issued a notice to Mr. Shortess that his appear was possibly defective in that it did not appear to contest the elements of a Rule 12.6 removal. Mr. Shortess was ordered to confirm whether the elements of a Rule 12.6 removal were being contested.

In response, Mr. Shortess submitted that EHCC terminated him because he could not perform a small number of tasks required of the job of corrections sergeant without accommodation. He argued that because Rule 12.6 expressly states that it is subject to the provisions of the ADA, Rule 12.6(a)l only authorizes the termination of an employee who cannot perform the essential functions of his position, with or without accommodation, the standard by which a termination is judged under the ADA. Mr. Shortess posited in accordance with the provisions of the ADA, EHCC was required to show that it attempted to accommodate his disabilities, and in the absence of evidence that it did so, Rule 12.6(a)l could not serve as the basis for his termination.

EHCC countered that the Commission did not have jurisdiction over Mr. Shor-tess’ appeal because it raised an employment discrimination claim under the ADA. EHCC also urged that an employee may be removed under Rule 12.6(a)l whenever the employee cannot perform the essential functions of the job due to an illness or disability, and requested that the appeal be summarily dismissed because Mr. Shor-tess acknowledged he could not perform some of the functions of the position of a corrections officer.

The referee summarily dismissed Mr. Shortess’ appeal without a hearing. In so doing, she concluded that in making a termination pursuant to Rule 12.6(a) “subject to the provisions of the ADA,” the Commission did not intend to give itself jurisdiction to determine whether an employer had met its obligation under federal law. Instead, she opined, the Commission added the reference to the ADA L“to alert state agencies that federal law might impact their use of Civil Service Rule 12.6(a).” The referee dismissed all claims based on the ADA, and observed that Mr. Shortess did not plead that he had more than 8 hours of sick leave, that his duties could go unperformed, or that he was able without ADA accommodation, to perform the essential functions of his position. Consequently, the referee ruled that Mr. Shortess’ appeal did not contest any of the elements of a Rule 12.6 removal.

In this appeal, Mr. Shortess contends the Commission erred in: (1) in failing to afford him a hearing of any kind; (2) failing to consider any evidence; (8) refusing to consider the impact the agency’s refusal to accommodate his disability had on his continued employment; and (4) refusing to consider any ADA issues, including his employer’s uneontradicted refusal to accommodate him.

DISCUSSION

No person who has gained permanent status in the classified state service shall be subjected to disciplinary action except for cause expressed in writing. La. Const, art. 10, § 8(A). A classified employee subjected to such disciplinary action has constitutional right to appeal the disciplinary action to the State Civil Service Commission. La. Const, art. 10, § 8(A); La. Const, art. 10, § 12(A).

Civil Service Rule 12.6, entitled “Nondisciplinary Removals,” provides as follows:

The provisions of this rule shall be made generally available to all employees. An employee may be non-disciplinarily removed under the following circumstances .... Subsection (a) is subject to the provisions of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
(a) Absence from Work
An employee may be removed under the following circumstances:
1. When, on the effective date of removal, the employee is unable to perform the essential functions of his job due to illness or medical disability and he has fewer than eight (8) | (¡hours of sick leave to his credit and his job must be performed without further interruption. (Emphasis added.)

Civil Service rules have the force and effect of laws. Bradford v. Department of Hospitals, 255 La. 888, 897, 233 So.2d 553, 556 (1970). It is well settled that Civil Service rules must be construed according to the rules of interpretation applicable to legislation. King v. LSU Health Sciences Center, 2003-1138, pp. 5-6 (La.App. 1st Cir.4/2/04), 878 So.2d 544, 547. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9.

The referee correctly observed that Rule 12.6(a)l constitutes legal cause for dismissal. See Bradford, 255 La. at p. 897, 233 So.2d at 556 (wherein the supreme court held that a rule providing for the permissible termination of an employee who is unable to perform his duties by reason of illness and who has exhausted his sick leave, expresses a legal cause for dismissal). However, the referee erred in interpreting Rule 12.6(a)l’s reference to the ADA to merely provide a warning to agencies that the federal law may impact their termination decisions, and in construing Rule 12.6(a)l in a manner that would require an employee to demonstrate that he can perform the essential functions of his job without ADA accommodation.

Rule 12.6 plainly and unambiguously subjects terminations based on an employee’s inability to perform a job due to illness or disability to the provisions of the ADA. As a general rule, the ADA makes it unlawful for employers to discriminate against a “qualified individual with a disability” because of the disability. 42 U.S.C. § 12112(a). The term “qualified individual with a disability” is defined as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or |Rdesires.” 42 U.S.C. § 12111(8). The ADA imposes upon employers a duty to provide reasonable accommodations for known disabilities of its employees unless doing so would result in an undue hardship to the employer. Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 (11th Cir.1997).

In order to establish a prima fa-cie case of discrimination in violation of the ADA, federal law holds that a plaintiff must prove: (1) he has a disability; (2) he is a “qualified individual” who can perform the essential functions of the employment position he holds or desires with or without reasonable accommodation; and (3) he was subjected to unlawful discrimination because of his disability. The plaintiff in an ADA case bears the burden of proving to the fact finder that the reasonable accommodations were available. The employer has the burden of persuasion on whether an accommodation would impose an undue hardship. Holbrook, 112 F.3d at 1526.

We hold that because a Rule 12.6(a)l termination is expressly subject to the ADA, the ADA accommodation requirement is incorporated therein as an element by which the propriety of the termination must be determined by the Commission. We conclude that a termination under Rule 12.6(a)l is authorized if the employee is unable to perform the essential functions of his job with or without reasonable accommodation, the employee has less than eight hours of sick leave, and the employee is working at a job that must be performed without interruption.

The accommodation issue requires the Commission to make a number of factual determinations, including whether there are reasonable accommodations available, and whether accommodating the employee would impose an undue hardship on the employer. By urging that his employer failed to reasonably accommodate his disabilities, Mr. Shortess squarely put the merits of his Rule 12.6 termination at issue before the Commission. Therefore, we hold that the Commission erred in refusing to hold a hearing to determine the merits of Mr. |7Shortess’ failure to accommodate claim. Accordingly, we remand this case to the Commission to conduct a hearing consistent with the pronouncements contained in this opinion. Costs of this appeal in the amount of $119.50 are assessed to appellee, Department of Public Safety and Corrections.

REVERSED AND REMANDED.

CARTER, C.J., dissented without reasons.

        . We presume, for the purpose of this appeal, that Mr. Shortess was an employee serving with permanent status at the time of his termination.


author: DOWNING, J.

text:
    Kerri L. BROWN v. LOUISIANA STATE OFFICE OF FAMILY SERVICES.
    No. 2006 CA 2282.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Kerri L. Brown, Plaintiff/Appellant In Proper Person.
    Gary J. Beauchamp, Assistant Atty. General, Baton Rouge, Counsel for Defendant/Appellee Louisiana State Office of Family Services.
    Before: PARRO, KUHN, and DOWNING, JJ.
   DOWNING, J.

li/This is an appeal from a judgment dismissing with prejudice an employee’s claim for workers’ compensation benefits. The Office of Workers’ Compensation (OWC) found that Kerri L. Brown: (1) did not timely report the alleged accident, (2) failed to present evidence that her wrist injury was work related, and (3) failed to prove she suffered a compensable injury. For the following reasons we affirm the judgment.

Ms. Brown is a state employee working as a Social Service Analyst II for the Louisiana Office of Family Services. She testified that she worked at this job for twelve years. She also testified that the position entailed much writing and computer entry. She alleged that sometime in March 2004, she injured her right wrist at work when she fell and struck a 2-hole punch. Nobody witnessed the accident, and Ms. Brown did not file an accident report with her employer at that time. She testified, however, that she told her coworkers about the injury. Prior to the alleged accident, Ms. Brown reported that she had been suffering pain, spasms, and cramps in her wrists for a year or two. The record reveals that Ms. Brown did not report an injury to her employer until after she had undergone surgery on her right wrist and had also found out that she would need surgery on her left wrist.

On April 6, 2004, she saw Dr. Ronald Sylvest for pain in her right wrist. Dr. Sylvest determined that Ms. Brown suffered from a ganglionic cyst on her right wrist but concluded that it did not require surgery at that time. On July 7, 2004, Ms. Brown had surgery to remove the cyst. Dr. Sylvest also performed a partial syno-vectomy.

UDr. Sylvest later determined that Ms. Brown needed surgery on her left wrist because the MRI showed a tear of the triangular fiber cartilage complex. This surgery was performed on September 8, 2004.

Ms. Brown filed a Disputed Claim for Compensation on October 22, 2004, alleging that she injured both wrists on February 26, 2004. Ms. Brown returned to work in November 2004. Ms. Brown’s group medical insurance paid for her medical expenses.

The OWC found “Ms. Brown’s explanation of why she waited so long to report an injury to be unconvincing.” The OWC found, that Ms. Brown failed to prove by a preponderance of the evidence that she suffered a compensable, work-related injury to either wrist. The OWC noted that neither of Ms. Brown’s doctors had indicated that her wrist problems were “work-related.” The OWC also considered Ms. Brown’s delay in reporting her alleged injury. Ms. Brown testified she waited five to six months after her own insurance company had approved and paid for the right wrist surgery before she reported her injury. This delay caused the OWC to question Ms. Brown’s credibility. The OWC also referenced the testimony of Renee Moses, an adjuster employed by The State of Louisiana Risk Management. Ms. Moses testified that although Ms. Brown’s claim was submitted as a carpal tunnel syndrome claim, her claim was denied because there was no medical diagnosis of carpel tunnel syndrome or any other com-pensable injury. Accordingly, we conclude that the OWC’s written reasons adequately explain the basis of its determination.

After a thorough review of the record and the evidence, we conclude that the OWC decision is not manifestly erroneous. We therefore affirm the judgment in accordance with Uniform Rules — Courts of Appeal, Rule 2JL6.2(A)(5).4 All costs associated with this appeal are assessed against Kerri L. Brown.

AFFIRMED.

      . Appellant is not represented by counsel and did not file a traditional brief. She instead filed a letter requesting reversal of the decision that this court will consider as the appellant’s brief.