author: STEWART, J.

text:
    SEQUOIA VENTURE NO. 2, LTD., Plaintiff-Appellant v. Sonia Peters CASSIDY and Joe Roy Peters, Defendants-Appellees.
    No. 42,426-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 10, 2007.

      McMiehael, Medlin, D’Anna & Wedge-worth, by James C. McMiehael, Jr., Shreveport, for Appellant.
    Jefferson R. Thompson, for Appellees.
    Before STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

|,The plaintiff, Sequoia Venture No. 2, Ltd. (“Sequoia”) appeals a summary judgment that denied its claim for specific performance of a buy/sell agreement and granted the claim of-the defendants, Sonia Peters Cassidy and Joe Roy Peters, for termination of the agreement. For the following reasons, we reverse the trial court’s judgment and order specific performance as explained in this opinion.

FACTS

The parties entered a buy/sell agreement on October 3, 2005. Sequoia agreed to purchase three tracts of land from the defendants, who are siblings. The land was the last of the tracts needed for a mixed use commercial and residential development planned by Sequoia for Bossier City between Barksdale Boulevard and Arthur Ray Teague Parkway near the Centu-ryTel Center.

The agreed upon purchase price was $750,000. Sequoia paid a deposit of $7,500, which was held in escrow to be applied to the purchase price at closing. The agreement provided that half of the purchase price was due at closing, which was to occur no later than December 30, 2005, if not extended. The agreement further stated that the balance was payable “no later than April 10, 2006.”

The agreement gave the seller a 60-day inspection period during which the seller had the' option of obtaining a commitment for title insurance. Upon discovery of any title objection during the inspection period, the agreement provided the seller with 20 days after receiving notice to cure or attempt to cure the objection. Four options were available to the | ¡^purchaser if the seller failed to cure the objection: (1) cure the objection at the purchaser’s cost and deduct the cost from the purchase price at closing; (2) extend the seller’s period for curing the objection; (3) waive the objection and proceed to closing; or (4) terminate the agreement and get back the deposit. In the event of extensions for the purpose of curing a title defect, the closing would occur 30 days thereafter.

The agreement included certain representations by the sellers. They represented that there were “no purchase contracts, options or other agreements of any kind, written or oral, whereby any person or entity ... has acquired or has any basis to assert any right, title or interest in, or right to possession, use, enjoyment or proceeds of all or any portion of the Property.” However, the sellers disclosed the existence of an “existing month-to-month lease” and represented that it would not be modified prior to closing. The agreement also required the seller, at closing, to deliver a free and clear title along with any affidavits or documents required for obtaining title insurance and “such additional documents as might be reasonably requested by Purchaser or the title company to consummate the sale

At the close of the contractual inspection period, Sequoia notified the sellers that it did not consider itself bound by the unrecorded lease or the previously undisclosed right of first refusal included in it. Closing was set for December 29, 2005, at United Title. The closing documents were signed on behalf of the purchaser, but the sellers refused to sign. It appears there |swere issues about an affidavit concerning the title that the sellers were required to sign as part of the closing documents.

After the closing failed, the purchaser received an anonymous fax showing that the lease had been recorded on December 28, 2005, the day before the closing was to have occurred. The fax also included a handwritten letter purporting to be a renewal of the lease for five years as of February 26, 2004. Sequoia determined that the recordation of the lease and the purported renewal now constituted a title objection. The parties agreed to extend the closing date so that sellers could cure the objection. On April 5, 2006, the sellers’ lease termination agreement was filed and recorded in Bossier Parish. The lease termination was signed by the lessee, Christine Keck, on March 30, 2006, and by Sonia Cassidy on behalf of the sellers on April 5, 2006. However, the termination agreement that was finally signed three months after the closing was to have occurred was not notarized, Cassidy’s signature was not witnessed, and she did not have a power of attorney authorizing her to sign on behalf of her brother.

During April, the parties began to negotiate a new closing date, but more issues arose. The sellers raised the issue of how the purchase price was to be paid. They contended that the full price should be paid at closing due to the contract provision requiring the balance of the purchase price to be paid “no later than April 10, 2006.” Sequoia contended that the contract provided for a bifurcated payment and that the extension to cure the title defect extended the payment periods under the contract. There were also issues about the fees to be charged against the sellers for the curative work |4on the title issue. Additionally, Sequoia was unsatisfied with the recorded lease termination agreement that was not notarized and not self-proving as required for it to obtain a title insurance policy. Either United Title or an attorney for Sequoia prepared a second lease termination agreement. The lessee’s notarized signature was obtained on April 27, 2006. Sellers have not yet signed the termination.

Attempts made during April and May to complete the closing were unsuccessful. Disagreements over the payment schedule, payment of fees for curative work, and the lease termination agreement led to an impasse which Sequoia finally sought to break by filing suit for specific performance. Sequoia alleged that the sellers did not exercise good faith and reasonable efforts to cure the title objection and that they refused to close under the terms of the agreement. The sellers filed a recon-ventional demand for termination of the agreement and liquidated damages in the amount of the $7,500 deposit paid by Sequoia. Sellers denied that the lease was a title objection and alleged that Sequoia breached the agreement by attempting to assess unwarranted closing costs and by refusing to pay the full purchase price upon scheduling a closing after April 10, 2006.

At a pre-trial conference, the trial court determined that the material facts were not in dispute and that the matter was one that could be decided on cross-motions for summary judgment. The parties did not object. Instead, they filed motions for summary judgment. The primary issues in dispute were the payment schedule and the lease termination. In granting the sellers’ motion for summary judgment, the trial court determined that the |ficontract language clearly provided for final payment on April 10, 2006, so any closing after that date would require full performance by both parties. The court also determined that the title objection was cured. Judgment was rendered November 9, 2006, terminating the buy/sell agreement and awarding the sellers liquidated damages. Sequoia’s suspensive appeal followed.

DISCUSSION

Rulings on motions for summary judgment are subject to a de novo review on appeal. Suire v. Lafayette City-Parish Consol. Gov., 2004-1459 (La.4/12/05), 907 So.2d 37. When the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show there is no genuine issue of material fact, summary judgment should be granted. La. C.C.P. art. 966(B).

When a contract can be construed from the four corners of the instrument, interpretation of the contract presents a question of law that can be decided on summary judgment. Sims v. Mulhearn Funeral Home, Inc., 2007-0054 (La.5/22/07), 956 So.2d 583; Scott v. Red River Waterway Commission, 41,009 (La. App. 2d Cir.4/12/06), 926 So.2d 830, unit denied, 2006-1153 (La.9/15/06), 936 So.2d 1269.

La. C.C. arts. 2045-2057 govern the interpretation of contracts. Contracts are interpreted according to the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear, explicit, and lead to no absurd consequences, no further interpretation need be made in search of the parties’ intent. La. C.C. art. 2046. A contract is ambiguous when it Jacks a provision bearing on the issue, its written terms are susceptible to more than one interpretation, there is uncertainty as to its provisions, or the parties’ intent cannot be ascertained from the language used. Campbell v. Melton, 2001-2578 (La.5/14/02) 817 So.2d 69. A provision is not considered ambiguous merely because one party creates a dispute about it. Campbell, supra; Slocum-Stevens Ins. Agency, Inc. v. International Risk Consultants, Inc., 27,353 (La.App. 2d Cir.12/11/95), 666 So.2d 352, writ denied, 96-0102 (La.3/8/96), 669 So.2d 399.

There are two issues in dispute-the payment and the lease termination. The undisputed facts show that both parties failed to fulfill the obligations of the contract. The clear and unambiguous contract language provides for the balance of the purchase price to be paid “no later than April 10, 2006.” Though the contract provided for extensions of the closing date, no provision was included for extending the April 10, 2006, deadline for payment of the final balance. Sequoia’s refusal to pay the full purchase price at closing in April or thereafter is a breach of the agreement.

The clear and unambiguous language of the buy/sell agreement also sets forth obligations applicable to the seller that have not been fulfilled. Contrary to the sellers’ representation in the agreement of the existence of a month-to-month lease that would not be modified prior to closing, the lease included an undisclosed right of first refusal. Moreover, the lease was modified, contrary to the sellers’ representation, by the recordation of the lease on the day prior to the first scheduled closing. The recordation of the lease on the eve of the closing scheduled for December 29, 2005, along with 17the revelation of a letter purporting to be a five-year renewal of the lease, resulted in the lease becoming a title impediment for the buyer. Though claiming to have had no knowledge that the lease had been recorded the day before, the sellers refused to close on the sale. These actions and the sellers’ refusal to close on the scheduled date resulted in the delays that have culminated in the disputes being litigated.

Section 3.2 of the buy/sell agreement obligates the sellers to “use good faith and reasonable efforts” to cure any title objection. Moreover, Section 6.1 of the agreement obligates the sellers to provide at closing “any affidavits or other documents required by the title insurance company as a prerequisite of issuing the title policy” and “such additional documents as might be reasonably requested by Purchaser or the title company to consummate the sale of the property.” The undisputed facts in the record show that the sellers have not resolved the title objection to the satisfaction of the title company or the purchaser. The unwitnessed and un-notarized termination agreement filed by the seller did not suffice for the purchaser to clear the objection for title insurance purposes. The purchaser’s closing agent has prepared an appropriate termination and has had it signed by the lessee. It is awaiting the sellers’ signatures.

At oral arguments, the attorneys for the parties were questioned about what needed to be done to complete the sale. Sequoia’s attorney represented to the court that it was willing to make one full payment to close the sale as long as the appropriate documents were signed to allow it to cure the objection and obtain title insurance. The sellers’ attorney represented |sthat if all of the purchase price is paid at closing, then the sellers are willing to sign at closing whatever documents are necessary to satisfy the purchaser on the title issue.

We are authorized to render any judgment that is just, legal and proper upon the record on appeal. La. C.C.P. art. 2164. Hibernia National Bank v. Orleans Regional Hosp., L.L.C., 28,982 (La.App. 2d Cir.11/1/96), 682 So.2d 1291, writ denied, 97-0026 (La.2/21/97), 688 So.2d 513. Considering the record before us and the representations of counsel, we find no basis for a summary judgment terminating the buy/sell agreement. Rather, specific performance is ordered according to the terms of the agreement and as represented by the parties’ attorneys. The purchaser, Sequoia, is to pay the balance due on the full purchase price of $750,000 at closing. The sellers, Sonia Peters Cassidy and Joe Peters, are to sign the termination agreement supplied on behalf of Sequoia and required for it to clear the title objection for title insurance purposes. We note that the sellers are obligated to pay “all costs associated with title curative work, if any” as set forth in Section 6.4 of the agreement. Sellers are to be assessed only those curative costs of preparing, signing, and notarizing the termination agreement as indicated by an itemized statement. Other closing costs of the sale are to be assessed as provided in the buy/ sell agreement.

CONCLUSION

For the reasons explained, the trial court’s judgment terminating the buy/sell agreement and awarding stipulated damages to Sonia Peters Cassidy and Joe Peters is reversed. Judgment is rendered granting specific ^performance as set forth in this opinion. Costs of this appeal are assessed equally between the parties.

REVERSED and RENDERED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    SUCCESSION OF Dona Mae FRANKLIN.
    No. 42,496-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 17, 2007.
    Seabaugh, Benson, Keene, Denny & Gerhardt, by: Joseph Ransdell Keene, Shreveport, for Appellant Robert Davis, Jr.
    Richie, Richie .& Oberle, by: Charles Vernon Richie, Shreveport, for Appellee Succession of Dona Mae Franklin.
    Wiener, Weiss & Madison, by: John McGinty Frazier, Amanda E. Waddell, Shreveport, for Appellees American Society for Prevention of Cruelty to Animals and The Paralyzed Veterans of America.
    Before GASKINS, CARAWAY and DREW, JJ.
   DREW, J.

_JjThe sole issue is whether a check payable to Dona Mae Franklin and found in her home following her death is a corporeal movable bequeathed to her legatee, Robert Davis, Jr., or an incorporeal movable inherited by the charities which are decedent’s residuary legatees. The trial court ruled that the check is an incorporeal movable and, therefore, not a part of the gifts bequeathed to Davis, who appealed. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Franklin died on December 1, 2005, leaving no surviving spouse or descendants. In her last will and testament dated January 27, 2005, Franklin bequeathed to Robert Davis, Jr., her “house and land located at 612 Jenkins Road, Shreveport, Louisiana, together with all of the corporeal movable contents thereof.” In the house, Davis found a $33,801.72 check payable to Franklin from AmergyBank, from which Franklin had redeemed her certificates of deposit (CDs). Davis delivered the check to the executor of the estate, attorney C. Vernon Richie, who deposited it into the succession bank account. The beneficiaries of Franklin’s residuary estate were the American Society for the Prevention of Cruelty to Animals (ASPCA) and the Paralyzed Veterans of America (PVA).

In a suit for a declaratory judgment, Richie sought to have the check classified as an incorporeal movable or a corporeal movable, thus determining which legatee(s) was entitled to the proceeds. Subsequently, the ASPCA and the PVA moved for a summary judgment declaring the check to be an incorporeal movable and part of decedent’s residuary estate. On December 18, 2006, the district court, citing La. C.C. art. 473, granted |2summary judgment declaring that the AmergyBank check was an incorporeal movable and, therefore, a part of the residuary estate belonging to the charities. Davis appealed.

DISCUSSION

The trial court must grant a motion for summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show ... that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Martin Marietta Materials of Louisiana, Inc. v. U.S. Fidelity and Guar. Co., 41,280 (La.App. 2d Cir.9/27/06), 940 So.2d 152. The facts in this case are not disputed, and the sole issue is the legal status of the check Davis found in the decedent’s home.

The parties all agreed that cash was a corporeal movable and that if the funds from the AmergyBank CD had been found as money within the decedent’s residence, the cash would have been a corporeal movable to which Davis was entitled. Davis essentially contended that the check is equivalent to cash, a corporeal movable to which he was entitled under the terms of the will. The charities asserted that a check (including a money order, cashier’s check, teller’s check or traveler’s check) was an incorporeal movable, only an instrument representing an obligation by the bank to pay the amount represented by the check from the drawer’s account.

In Succ. of Walker, 533 So.2d 70 (La. App. 3d Cir.1988), unit denied, 536 So.2d 1254 (La.1989), the decedent, Salter Walker, gave J.C. Walker a certified cashier’s check made payable to decedent and J.C. Walker. After Salter’s death, J.C. cashed the check, paid for the funeral and kept the balance. The administrator of decedent’s estate sued J.C. for the return of the money. Since the check was not cashed until after Salter’s death, the succession contended on appeal that there was no valid manual gift of the cashier’s check, since it was an incorporeal movable, the donation of which had to be by authentic act. La. C.C. arts. 1536 and 1538. The court stated:

Under Louisiana law, property may be gratuitously disposed of in only two ways: (1) Donations inter vivos (between living persons), or (2) Donations mortis causa (in prospect of death). La. C.C. art. 1467. A donation mortis causa is only valid when done through a last will and testament. La. C.C. art. 1570. As the decedent in this case died intestate, there was no valid donation mortis causa of this certifícate of deposit.
A donation inter vivos is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it. La. C.C. art. 1468. In order to be a valid donation inter vivos of immovable property or of incorporeal things, the donation must be by notarial act. La. C.C. art. 1536, 1538. The only exception to the form requirement of arts. 1536 is the giving of a manual gift. A manual gift, as defined by La. C.C. art. 1539, is “the giving of corporeal movable effects, accompanied by a real delivery.” This type of donation is not subject to any formality.

Walker, supra, at p. 73.

La. C.C. art. 461 defines corporeals as things that have a body, whether animate or inanimate, and can be felt or touched. The article specifies that incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, Lservitudes, obligations, and right of intellectual property. Corporeal movables are things, whether animate or inanimate, that normally move or can be moved from one place to another. La. C.C. art. 471. Incorporeal movables are defined in La. C.C. 473, which states, in pertinent part:

Rights, obligations, and actions that apply to a movable thing are incorporeal movables. Movables of this kind are such as bonds, annuities, and interests or shares in entities possessing juridical personality.

The Walker court explained that cash is a corporeal movable which may be the subject of a manual gift. A check which has not been cashed by the donee prior to a donor’s death is still an incorporeal moveable and cannot be the subject of a manual gift under the aforementioned requirements of the Civil Code. The court went on to point out that the legislature effectively overruled a 1981 case, Succession of Miller, 405 So.2d 812 (La.1981), which held that bearer bonds were incorporeal immovables not subject to being a manual gift with the result that the bonds were still part of the decedent’s estate. Enacted in 1982, La. R.S. 10:3-201(4) directed that inter vivos donations of negotiable instruments were governed by Title 10 rather than any contrary provisions in the Civil Code.

The analysis of the disputed cashier’s check in Walker resulted in the court concluding that it was a negotiable instrument. The Walker check was signed by the maker and was an unconditional promise to pay a sum certain in money to the bearer. It was undisputed that the check was the proceeds from a CD which belonged to the decedent, although the CD was in the name of the decedent and J.C. The evidence was that Salter, the decedent, donated/transferred the check (made out to him and J.C.) to J.C. the day | ¡^before Salter’s death. Even though the transaction did not comply with the Civil Code requirements for donating an incorporeal movable, the negotiable instrument became the property of J.C., who was a named payee, another necessity for an instrument to be negotiable. Succ. of Walker, supra.

We recognize that the Walker case upon which the charities rely is factually distinguishable. The Walker check was made payable to the decedent and the claimant, J.C., while this check was made payable only to the decedent, Dona Mae Franklin. Most significantly, Walker dealt with an inter vivos donation while the present dispute concerns a donation mortis causa. Davis is not assisted by jurisprudence stating that checks can be subject to manual gifts. The charities here correctly point out that the decedent’s intent is not an issue in this donation mortis causa. The sole issue is the legal status of the check representing the proceeds of the decedent’s CD.

Davis’ reliance on the fact that checks are not included in the items listed in La. C.C. art. 473 is misplaced. The list is clearly illustrative based upon the language that incorporeal movables “are such as bonds, annuities, and interests or shares ...” (Emphasis added.) Another item not contained in the list in La. C.C. art. 473 is a CD which was held to be an incorporeal movable in Poirier v. Poirier, 95-394 (La.App. 3d Cir.11/2/95), 664 So.2d 532. In that community property dispute, the court held that there was no showing of the required notarial donation of the CDs nor any evidence that the CDs were negotiable instruments governed by the exception contained |fiin La. R.S. 10:3-201(4). Therefore, the CDs were incorporeal movables and remained part of the community property. Poirier, supra.

This check made payable to the decedent represented the obligation of the bank to pay funds to the decedent. The charities correctly note that the bank had no obligation to pay the funds represented by the check to Davis. Because the check had yet to be cashed, it represented the right to the money and an obligation of the bank to pay to the proper obligee. The trial court correctly found the check to be an incorporeal movable in the decedent’s residuary estate to which the charities are entitled.

DECREE

The judgment of the trial court is affirmed at the cost of appellant, Robert Davis, Jr.

AFFIRMED.


author: CARAWAY, J.

text:
    Willis Leon BOOKER, Plaintiff-Appellant v. Charles BYRD, M.D. and Willis-Knighton Medical Center, Defendants-Appellees.
    No. 42,414-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Willis Leon Booker, In Proper Person.
    Watson, Blanche, Wilson & Posner, by Peter T. Dazzio, Bruce MacLachlan Ho-rack, Jr., Meredith J. Trahant, Baton Rouge, for Appellee, Willis-Knighton Medical Center.
    Pugh, Pugh & Pugh, L.L.P., by Robert G. Pugh, Jr., Shreveport, for Appellee Charles R. Byrd, M.D.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

1 t Plaintiff appeals the trial court’s judgment sustaining the defendants’ peremptory exception of prescription and dismissing plaintiffs medical malpractice claims. Despite plaintiffs institution of a medical review panel proceeding and an opinion by the panel, timely suit in district court was never filed. Accordingly, the judgment of the trial court is affirmed.

Facts and Procedural History

This medical malpractice suit was never instituted by the injured plaintiff, Willis Leon Booker, in the district court. Instead, on June 8, 2006, this action was commenced by the defendants, Dr. Charles R. Byrd and Willis-Knighton Medical Center (“W-K MC”), pursuant to a provision of the Louisiana Medical Malpractice Act (“MMA”), La. R.S. 40:1299.47(B)(2)(a), for a challenge of prescription or peremption to the plaintiffs pending claim before a medical review panel. Plaintiffs claim arose out of a March 2001 laparoscopic gallbladder surgery performed by Dr. Byrd and the five weeks of intensive care treatment for complications at W-K MC that followed.

As the result of unusual procedural actions before the Patients’ Compensation Fund (“PCF”), two medical panel proceedings were begun on plaintiffs behalf. Yet, each PCF action revealed evidence of damaging medical complications occurring from the same 2001 surgery.

The first PCF action, Number 2002-00788 (“PCF # 1”), was instituted on April 23, 2002, which was apparently within one year from the time of plaintiffs release from the hospital after surgery. PCF # 1 concluded with the opinion of the medical review panel on June 22, 2005. The panel found |2no medical malpractice by the defendants. The ruling identified the March 29, 2001 laparoscopic cholecystectomy as the surgical procedure, a biliary leak that resulted, and the numerous life-threatening complications that plaintiff suffered. The panel recognized the biliary leak as a known complication of the surgery and found no breach of the standard of care in Dr. Byrd’s “operative procedure of the pre- or post-op management of Mr. Booker.” The panel also found that the plaintiffs development of decubitus ulcers was a known risk of patients on ventilators and found no medical malpractice by W-K MC in the care extended to plaintiff during his long recovery.

After the panel’s ruling, plaintiff obtained new counsel who, through two letters to the PCF in November and December 2005, attempted an “amendment” to the PCF # 1 proceeding. The “amendment” identified plaintiffs pulmonary embolism as another condition resulting from the surgical malpractice. Also, the “amendment” claimed that Dr. Byrd’s procedure failed to remove four gallstones. These were matters allegedly “left out” of the PCF # 1 proceeding. The PCF responded to these claims by opening a new case, Number 2005-02164 (“PCF # 2”).

In response to PCF # 2, the defendants brought this special proceeding in district court under the MMA asserting the exception of prescription or peremption of Booker’s claims. The trial court considered the evidence of the filings before the PCF which the defendant presented with the exception. Booker offered no evidence.

In reaching its ruling granting the defendants’ exception, the trial court made the following observations regarding Booker’s “amendment” |scompIaints to the PCF:

There are two ways to approach this complaint. Either it is an appeal of the board’s opinion, or it is a new complaint. If it is an appeal, more than ninety days elapsed between the mailing of the review panel opinion and the communications sent by Mr. Harville on November 8, 2005, and December 13, 2005. As such, the original complaint has prescribed. If the complaint is considered as a new complaint, as the PCF did when it assigned a new file number on November 10, 2005, the complaint is barred by both prescription and per-emption.

Booker has appealed the trial court’s ruling.

Discussion

Prescription in medical malpractice actions is governed by La. R.S. 9:5628(A), which provides:

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

Under the MMA, the prescriptive period for the malpractice claim is suspended from the time a complaint seeking MMA review is filed until 90 days following notification of the issuance of the medical review panel’s opinion. La. R.S. 40:1299.47(A)(2)(a). This is because all malpractice claims against health care providers covered by the MMA, other than claims validly agreed to for submission to a lawfully binding arbitration procedure, must be reviewed by a medical review panel. When the ninety-day period of suspension after the decision of the medical review panel is completed, | ¿plaintiffs in medical malpractice actions are entitled to the period of time, under La. R.S. 9:5628, that remains unused at the time the request for a medical review panel is filed. Guitreau v. Kucharchuk, 99-2570 (La.5/16/00), 768 So.2d 575, 579.

The principal purpose of the MMA is to limit the liability of health care providers who qualify under the Act by maintaining specified basic malpractice insurance and by contributing a surcharge to the Patients Compensation Fund. As long as health care providers remain qualified under the Act, the providers and their insurers are liable for malpractice only to the extent provided in the Act. La. R.S. 40:1299.45(A). The MMA’s limitation on the liability of covered health care providers is special legislation in derogation of the rights of tort victims. As such, the coverage of the MMA should be strictly construed.

The MMA provides for this state court proceeding instituted by the defendants in La. R.S. 40:1299.47(B)(2)(a), as follows:

A health care provider, against whom a claim has been filed under the provisions of this Part, may raise any exception or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel.

In Perritt v. Dona, 35,628, 35,724, 35,841 (La.App. 2d Cir.9/20/02), 827 So.2d 1222, affirmed in part, reversed in part (on other grounds) 02-2601, 02-2603 (La.7/2/03), 849 So.2d 56, we had occasion to address the “complaint” which the injured plaintiff must file with the PCF and the notice that must be given through that complaint to the defendant health care provider and the medical review panel for the malpractice claim. We | ¿found that the material fact allegations necessary for the malpractice “complaint” for the commencement of the medical review panel proceedings should include the fact allegations of the health care provider’s action or inaction and the allegations of the injury that would not otherwise have been incurred. Affirming that portion of our ruling, the supreme court held that the plaintiff is not required to specifically delineate in the MMA complaint every breach of the applicable standards of care, but rather need only present sufficient information for the medical review panel to make a determination as to whether the defendant’s health care provider is entitled to the protections of the MMA regarding the claimed medical malpractice. See Perritt v. Dona, 849 So.2d 56.

The filings for PCF # 1 indicate that all of Dr. Byrd’s actions as Booker’s surgeon in 2001 were subject to review by the medical review panel. Despite notice through PCF # 1 of that crucial occurrence that is the subject matter of this litigation, Booker filed an “amendment” in the apparent belief that his cause of action was not completely addressed by PCF # 1. This course of action is problematic and clearly ill-advised, raising issues of issue preclusion, procedure under the MMA, and prescription. However, with the prescription issue now being presented, we agree with the trial court’s analysis that prescription has run regardless of the unusual dual filings before the PCF.

In the present case, the alleged acts of malpractice occurred between March 29, 2001, the date of the surgery, and the following five weeks (35 days) during which Mr. Booker was in ICU. Accordingly, prescription on Mr. Booker’s claims began running in May 2002. If the claims presented by |fiBooker’s filings in November and December 2005 represent a cause of action separate from his claims addressed by the initial panel ruling in PCF # 1, there would be no suspension of prescription resulting from the PCF # 1 proceedings and the maximum three-year prescription/peremption of La. R.S. 9:5628(A) ran on those claims.

On the other hand, if Booker’s claims in PCF # 2 did not present a separate cause of action and merely further elaborated his initial action in PCF # 1, the suspension of prescription which resulted from the initial panel proceedings ended in the fall of 2005. Following 90 days after the issuance and mailing of the panel’s opinion, prescription would begin running again. La. R.S. 40:1299.47(A)(2)(a). Since the April 2002 commencement of PCF # 1 occurred almost one year following Booker’s hospitalization, the time remaining on the one-year prescriptive period following the MMA suspension was short. Nothing in the MMA allows for Booker’s subsequent “amendment” actions to suspend or interrupt the running of prescription, and timely suit in district court was necessary to interrupt prescription. Therefore, prescription ran months before the time of the filing of this special proceeding by defendants in June of 2006.

Conclusion

For the reasons set forth above, the judgment of the trial court sustaining the defendant’s peremptory exception of .prescription is hereby |7affirmed. The costs of this appeal are to be assessed to appellant.

AFFIRMED.

      . The 90-day period following the medical review panel's ruling in this case would have ended in the fall of 2005 when the special Executive Orders KBB 2005-32, KBB 2005-48, and KBB 2005-67 caused the suspension of prescription in the aftermath of Hurricanes Katrina and Rita. See La. R.S. 9:5831. At the conclusion of those special suspensions of li-berative peremption in November 2005, prescription on Booker’s claims presented in PCF # 1 began running again.


author: LOLLEY, J.

text:
    NATIONAL AUTOMOTIVE INSURANCE COMPANY, As Partial Subrogee of/and Shawna Pearson, Plaintiffs-Appellants v. Christopher W. CASTLEMAN, Georgia Castleman & American Century Casualty Company, for Defendants-Appellees.
    No. 42,518-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Allen & Gooch by Robert A. Robertson, Lafayette, for Appellants.
    Blanchard, Walker, O’Quin & Roberts by Paul M. Adkins Scott R. Wolf, Shreveport, for Appellees.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

| Appellants, National Automotive Insurance Company as partial subrogee of/and Shawna Pearson, appeal the granting of summary judgment by the 26th Judicial District Court, Parish of Bossier, State of Louisiana, in favor of American Century Casualty Company. For the following reasons, the judgment of the trial court is affirmed.

FACTS

On February 21, 2005, Shawna Pearson was traveling northbound on Water Road in Bossier Parish, Louisiana, when she was involved in an accident with a 1998 Chevrolet S-10 pickup truck owned by Gloria Castleman. The truck was being operated by Chris Castleman, Gloria’s son, and was insured under a policy issued to Gloria Castleman by American Century Casualty Company (“ACCC”). As a result of the accident, Pearson allegedly incurred $3,984.51 in property damage which her insurer, National Automotive Insurance Company (“NAIC”) paid to her, less her $500.00 deductible.

Subsequently, NAIC as subrogee of/and Pearson filed suit against Christopher Cas-tleman, Gloria Castleman and ACCC for the property damage incurred as a result of the accident. In its answer, ACCC alleged among other defenses, that Chris was an excluded driver under its policy and, thus, no coverage existed for his fault, if any, in the damages caused to Pearson and NAIC.

ACCC filed a motion for summary judgment, alleging that no genuine issue of fact existed as to whether Chris was an excluded driver under the policy issued to Gloria Castleman and that ACCC was entitled to summary ^judgment as a matter of law. In support of its motion for summary judgment, ACCC submitted a certified copy of the insurance policy and an affidavit from Richard Reed, one of its claims managers. The parties agreed to submit ACCC’s motion for decision on the basis of their briefs, and subsequently, the trial court rendered judgment granting ACCC’s motion for summary judgment. This appeal by NAIC and Pearson ensued.

Discussion

In their first assignment of error, the appellants argue that the trial court erred in granting summary judgment because issues of material fact existed. Specifically, appellants maintain that ACCC failed to show that no genuine issue of fact existed as to whether Chris was a resident of Gloria Castleman’s household at the time she executed the named driver exclusion form.

An insurance policy is an agreement between parties and should be interpreted using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377 (La. 1993); Fields v. American Cent. Ins. Co., 40,738 (La.App. 2d Cir.03/08/06), 923 So.2d 967. Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., 1993-1480 (La.04/11/94), 634 So.2d 1180. The insurer, however, has the burden of proving that a loss comes within a policy exclusion. Fields, supra.

On the date the policy at issue was delivered and on the date of the accident, La. R.S. 32:900(L) provided:

|3(1) Notwithstanding the provisions of Paragraph (B)(2) of this Section, an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement. For the purposes of this Subsection, the term “named insured” means the applicant for the policy of insurance issued by the insurer.
(2) The form signed by the insured or his legal representative which excludes a named person from coverage shall remain valid for the life of the policy and shall not require the completion of a new driver exclusion form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. Any changes to an existing policy, including but not limited to the addition of vehicles or insured drivers to said policy, regardless of whether these changes create new coverage, do not create a new policy and do not require the completion of a new agreement excluding a named person from coverage. For the purpose of this Subsection, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

In short, La. R.S. 32:900(L)(1) provides the authority for the automobile insurer and the insured to contract to exclude a resident of the insured’s household from coverage under the policy. The purpose is to give the insured the option of paying a reduced premium in exchange for insurance that affords no coverage while a vehicle is being operated by the excluded driver. Bryant v. United Servs. Auto. Ass’n, 2003-3491 (La.09/09/04), 881 So.2d 1214.

Here, the insurance policy was originally issued on January 29, 2004, and contemporaneous with the application for same, Gloria executed three | ¿separate endorsement forms entitled “Exclusion of Named Driver.” One of these three forms excluded Chris from coverage under the policy. The pertinent language from the endorsement read as follows:

IMPORTANT — READ BEFORE YOU SIGN

You agree that none of the insurance coverages afforded by this policy shall apply while

Chris Castleman 6/21/86

(The Excluded Driver)

is operating your covered auto(s) or other motor vehicle.

The declarations page lists Gloria’s address as 2 Amanda Lane, Haughton, Louisiana 71037. On the amended declarations page reflecting the named driver exclusions, Gloria, Jacob, Chris and John Cas-tleman are listed as “All Drivers in the Household.” Furthermore, paragraph 17 of the “Conditions” section of the policy reads as follows:

Declarations. By the acceptance of the policy, the insured named in the declarations agrees that the statements contained in the application, a copy of which is attached to and forms a part of this policy, have been made by him or on his behalf and said statements and the statements in the declarations and in any subsequent application by the Company are offered as an inducement to the Company to issue or continue this policy and that the same are his agreements and representations, and that this policy is issued and continued in reliance upon the truth of such statements and representations and that this policy embodies all agreements existing between himself and the Company or any of its agents relating to this insurance.

The policy was originally issued to cover only one vehicle-a 1998 Ford Taurus. On February 21, 2004, coverage for the 1998 Chevrolet S-10 pickup involved in the accident was added to the policy, and on September 30, 2004, coverage for a 2000 Chevrolet S-10 pickup was added. The policy renewed on February 10, 2005. At the time of renewal the policy’s [s“Renewal Certificate” indicated that Chris, Jacob and John Castleman continued to be excluded drivers under the policy and that coverage under the policy applied to the 1998 and 2000 S-10 pickups. The 1998 Ford Taurus was no longer listed as a covered automobile.

Appellants’ argument that ACCC failed to meet its burden of showing that Chris Castleman was a resident of the insured’s household when the named driver exclusion was executed is without merit. In support of the motion for summary judgment, ACCC submitted a copy of its policy indicating that the insured, Gloria Castleman, had expressly elected to exclude Chris Castleman from coverage under the policy. Furthermore, the declarations page for the policy period dated January 29, 2004, lists Chris Cas-tleman as a resident of the insured’s household. Finally, the policy contains a provision indicating that Gloria agreed that the statements on the declarations page were offered as inducement to ACCC to undertake the risk, that the statements were based on her representations, and that the policy was issued in reliance upon the truth of such statements.

Pursuant to the policy’s provisions, the inclusion of Chris Castleman as a member of Gloria’s household on the declarations page on the same date she executed the “Exclusion of Named Driver” form constituted a stipulation by Gloria that Chris Castleman was a member of her household at the time the written agreement was entered into. Because the exclusion remains effective, regardless of whether the excluded person continues to remain a resident of the same household, La. R.S. 32:900(L)(1), Chris Castleman’s residence thereafter is irrelevant.

(¡Furthermore, as this court has previously stated, because a legal presumption exists in favor of the validity of a contract, ACCC had no obligation to show every prerequisite to the fulfillment of the insurance contract. Fields, at 972, citing J.P. Barnett v. Ludeau, 171 La. 21, 129 So. 655 (1930) and Wilson v. Sawyer, 106 So.2d 831 (La.App. 2d Cir.1958). Accordingly, perfection of the contract which included the exclusion of Chris as a named driver gives rise to the presumption that the exclusion was valid and therefore, that Chris was a resident of Gloria’s household. This assignment is without merit.

In their second assignment of error, the appellants argue that the trial court erred in granting summary judgment dismissing all of plaintiffs’ claims against ACCC, because the named driver exclusion does not preclude coverage under appellants’ negligent entrustment claim against Gloria. Again, we disagree.

Appellants argue that because Gloria entrusted her vehicle to an excluded and uninsured driver, ACCC should be liable for their damages under the theory of negligent entrustment. The contractual exclusion in this case clearly provides that none of the coverage afforded therein “shall apply while Chris Castleman is operating your covered auto(s) or any other motor vehicle.” The exclusion is not limited to liability for Chris’ negligence in operating a covered vehicle, it excludes coverage for any liability arising while he is driving a covered vehicle.

Whether the claim is one for Chris’ negligence in operating the vehicle or for Gloria’s negligent entrustment of the vehicle, the alleged pliability arose while Chris was operating a covered auto and was thus excluded from coverage under the policy. The appellants have not urged nor is this court aware of any public policy which would preclude the enforcement of such an exclusion.

The Fourth Circuit Court of Appeal addressed the issue of whether a named driver exclusion had the effect of precluding coverage for a claim against the named insured for negligent entrustment of a covered vehicle to the excluded driver in Medina v. Woods, 2005-1303 (La.App. 4th Cir.10/31/06), 944 So.2d 697. In finding that it did, the court reasoned that it would unjustly deprive the insurer of the benefit of its bargain to allow an insured to purchase a vehicle liability policy with an excluded driver endorsement, proceed to permit the excluded driver to drive the insured vehicle, and then reap the benefits of the policy. Where the policy language clearly precludes coverage as it does in the instant case, we agree. Accordingly, this assignment of error is also without merit.

Conclusion

For the reasons set forth above, the judgment of the trial court granting American Century Casualty Company’s motion for summary judgment is affirmed. Costs of this appeal are to be borne by National Automotive Insurance Company as partial subrogee of/and Shawna Pearson.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Ronald K. POWELL, Appellant.
    No. 42,540-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Mark 0. Foster, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, R. Nicholas Anderson, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   GASKINS, J.

I,The defendant, Ronald K. Powell, was convicted as charged for possession of cocaine with intent to distribute and conspiracy to distribute cocaine. He was sentenced to serve five years at hard labor for possession of cocaine with intent to distribute and eight years at hard labor for conspiracy to distribute cocaine. The sentences were ordered to be served concurrently. The defendant appeals, claiming that there was insufficient evidence to support the conviction for conspiracy to distribute cocaine. He also contends that the convictions for possession of cocaine with intent to distribute and conspiracy to distribute cocaine violated his right against double jeopardy. For the following reasons, the defendant’s convictions and sentences are affirmed.

FACTS

On November 9, 2005, Detective Trish Passman of the Monroe Police Department received information that the defendant and Desiree Brisco were staying in Room 34 of the Palms Motel in Monroe and were involved in illegal drug activity. There was an active arrest warrant for Ms. Bris-co, who had a history of drug distribution.

Detective Passman and other officers assigned to the Metro Narcotics Unit, a multi-jurisdictional task force, went to the Palms Motel and learned from the manager that Room 34 was registered to Ms. Brisco and the defendant. Records indicated that the couple checked in on November 2, 2005. Detective Passman knocked on the door of the room and Ms. Brisco answered. She recognized Detective Passman and attempted to close the door. Detective Passman pushed the door open and Ms. Brisco backed up [^toward the bathroom. As Detective Passman and other officers entered the room, they noticed the defendant sitting on the left side of the bed. The officers observed a rock of crack cocaine located on top of an electronic Yahtzee game on a nightstand on the right side of the bed. A plate with a razorblade and cocaine residue was also found on the floor of the room.

Ms. Brisco was advised of her rights and arrested pursuant to the outstanding warrant. Detective Passman advised the defendant of his rights. Both the defendant and Ms. Brisco were patted down. The defendant was asked if he had anything in his pockets the officers needed to know about. The defendant gave permission to search his pockets. A wallet containing $2,397.00 in cash was removed from the defendant’s pants pocket.

Detective Passman received the defendant’s permission to search the rest of the room. In the drawer of the nightstand on the left side of the bed, the officers found $125.00 in cash and a box of sandwich bags. Inside the box was a small plastic bag containing approximately 30 rocks of crack cocaine.

The defendant and Ms. Brisco were transported to the Metro Narcotics office in separate vehicles and were put in separate interview rooms. The defendant indicated that he remembered and understood his rights and assented to questioning by Detective Passman and Detective Jay El-lerman. The defendant gave the officers a statement in which he admitted the crack cocaine belonged to him and Ms. Brisco. The defendant took responsibility for the cocaine and said that he bought one half ounce of crack cocaine for $300.00 the day before from someone at a gas station | o,across the street from the Palms Motel. According to the defendant, he bought one half ounce of cocaine from the same person about twice a week. The defendant said that he and Ms. Brisco sold the cocaine to their friends to survive.

The defendant was charged by bill of information with possession of cocaine with intent to distribute and conspiracy to distribute cocaine. He was tried by a jury. The defendant testified on his own behalf, denying that he bought or sold drugs. He claimed that he told the detectives what they wanted to hear in an attempt to get out of trouble. The jury found the defendant guilty as charged on both counts.

The defendant appealed, claiming that there was insufficient evidence to support his conviction for conspiracy to distribute cocaine. He also argues that the convictions for possession of cocaine with intent to distribute and conspiracy to distribute cocaine violate his right against double jeopardy.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence does not support a conviction for conspiracy to distribute cocaine. The defendant contends that the evidence fails to show that he and Ms. Brisco had specific intent to conspire to sell drugs. The defendant maintains that there is no showing of an agreement or combination between the defendant and Ms. Brisco for | transferring possession or control of cocaine to an intended recipient. This argument is without merit.

Legal Principles

Although the record does not reflect that the defendant filed a motion for post verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App. 2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App. 2d Cir.2/26/97), 691 So.2d 1273.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Henson, supra. 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. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Henson, supra. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the | ¡^evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Henson, supra.

La. R.S. 14:26 states in pertinent part: Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.

The elements of the crime of conspiracy are an agreement or combination of two or more persons for the specific purpose of committing a crime and an act done in furtherance of the object of the agreement or combination. La. R.S. 14:26; State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, State ex rel. Hampton v. State, 2004-0834 (La.3/11/05), 896 So.2d 57, and State ex rel. Hargrove v. State, 2004-2380 (La.6/3/05), 903 So.2d 452; State v. Valrie, 1999-226 (La.App. 3d Cir.10/13/99), 749 So.2d 11, unit denied, 1999-3236 (La.4/20/00), 760 So.2d 343. An essential element of the crime of conspiracy is specific intent. Specific intent is defined as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow the act or failure to act. Even though intent |fiis a question of fact, it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Hampton, supra; State v. Johnson, 2001-1084 (La.App. 3d Cir.2/06/02), 817 So.2d 120; State v. Taylor, 96-1043 (La.App. 3d Cir.2/05/97), 688 So.2d 1262. The existence of specific intent is an ultimate legal conclusion .to be resolved by the trier of fact. State v. Valrie, supra. The foundation of the offense is the combination of two minds for an unlawful purpose. State v. D’Ingianni, 217 La. 945, 47 So.2d 731 (1950); State v. Williams, 33,881,(La.App. 2d Cir.9/27/00), 768 So.2d 728, writ denied, 2000-3099 (La.10/5/01), 798 So.2d 963.

The overt act need not be unlawful; it may be any act, innocent or illegal, accompanying or following the agreement, which is done in furtherance of the object of the agreement. State v. Hampton, supra; State v. Taylor, supra.

Distribution of a controlled dangerous substance (CDS) is the knowing or intentional distribution of a listed substance. La. R.S. 40:967. Testimony of the street value and dosage of the drug is relevant to the issue of intent. State v. Mitchell, 37,-916 (La.App. 2d Cir.3/3/04), 869 So.2d 276, cert. denied, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d. 801 (2005). Cocaine is a Schedule II CDS. La. R.S. 40:964. Distribution means to deliver a CDS by, among other things, physical delivery. La. R.S. 40:961(14); State v. Williams, supra.

|7Piscussion

The evidence supports the defendant’s conviction for conspiracy to distribute cocaine. The defendant told the officers that he bought one half ounce of crack about twice per week and that he and Ms. Brisco sold the drugs to their respective friends for their livelihood. These facts show that the defendant and Ms. Brisco agreed to act together to sell drugs to their friends. The evidence showed that the defendant and Ms. Brisco were in possession of unlawful drugs and the amount of cash possessed by the defendant indicates that he had made several sales.

The defendant cites State v. Mitchell, supra, in support of his argument that the evidence was insufficient to support a conviction for conspiracy to distribute cocaine. The facts of State v. Mitchell, supra, are distinguishable from those of the present case. In Mitchell, the defendant was stopped for a traffic offense. He was driving a van with several passengers. The defendant gave consent to search the vehicle and 36 bags containing suspected crack cocaine were discovered along with six plastic bags of suspected marijuana. Also found were handguns and money. In Mitchell, there was absolutely no evidence of specific acts involving the cocaine and marijuana as a part of a joint venture or enterprise between the defendant and his passengers. In the case sub judice, the defendant told police that he regularly bought cocaine to be sold by him and Ms. Brisco.

These facts are sufficient to satisfy the elements of the offense of conspiracy to distribute cocaine. The facts show that the defendant and Ms. ^Brisco were engaged in a joint venture to sell drugs which were purchased by the defendant, in bulk, for that purpose.

DOUBLE JEOPARDY

The defendant argues that his convictions of possession of cocaine with intent to distribute and conspiracy to distribute cocaine violated his right against double jeopardy. This argument is without merit.

Legal Principles

Both the Fifth Amendment to the Untied States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee that no person shall be twice placed in jeopardy for the same offense. The purpose of these provisions is to protect a person from a second prosecution after he has already been acquitted or convicted for that offense and also to protect an accused against multiple punishment for the same conduct. State v. Kelley, 36,602 (La.App. 2d Cir.1/29/03), 836 So.2d 1243.

Louisiana uses both the test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and the “same evidence test” in determining whether double jeopardy exists. La. C.Cr.P. art. 596; State v. Vaughn, 431 So.2d 763 (La.1983). In Blockburger, supra, the United States Supreme Court held that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. This test was affirmed in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). State v. Kelley, supra.

The same evidence test is a broader test than the Blockburger test. If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. State v. Steele, 387 So.2d 1175 (La.1980); State v. Kelley, supra.

The crime of possession with intent to distribute cocaine requires proof of the following elements to support the defendant’s conviction. The prosecutor must show beyond a reasonable doubt that the defendant was in possession of a controlled dangerous substance, i.e., cocaine, with specific intent to distribute same. La. R.S. 40:967; State v. Johnson, 34,902 (La. App. 2d Cir.9/26/01), 796 So.2d 201, writ denied, State ex rel. Johnson v. State, 2003-2631 (La.11/8/04), 885 So.2d 1124.

Conspiracy to distribute cocaine does not require these elements. To find one guilty of conspiracy to distribute cocaine, the state must show that there existed an agreement or combination of two or more persons for the specific purpose of transferring possession or control of the cocaine to an intended recipient. A prima facie case of conspiracy is presented by introduction of evidence which, if unrebutted, is sufficient to establish the fact of conspiracy. The elements of conspiracy must be established by direct or circumstantial evidence. State v. Kelley, supra.

[^Discussion

In this case, the same evidence was not necessary for a conviction of both crimes. Possession of cocaine with intent to distribute does not require an agreement of two or more persons for the specific purpose of committing the crime and an act in furtherance of the crime as does the crime of conspiracy to distribute cocaine. The conspiracy charge in this case requires proof of an element not included in the crime of possession of cocaine with intent to distribute and does not involve the same evidence. Therefore, the offenses are not the same. The evidence is sufficient to support both of the offenses charged in this case. Convictions for both offenses do not violate double jeopardy.

ERROR PATENT

We note that the first two years of each sentence should have been imposed without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967. The trial court’s failure to state that these sentences shall be served without benefits will be automatically corrected by operation of La. R.S. 15:301.1. See State v. Hampton, supra.

CONCLUSION

For the reasons stated above, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The defendant acknowledges in his brief that, although he denied drug dealing at trial, the evidence viewed in the light most favorable to the prosecution supports a conviction for possession of cocaine with intent to distribute.


text:
    STATE of Louisiana, Appellee v. Huette A. BARBER, Jr. a/k/a Chip Barber, Appellant.
    No. 42,548-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Lavelle B. Salomon, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| j This criminal appeal arises from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana. The defendant, Huette “Chip” A. Barber, Jr., pled guilty to vehicular homicide, a violation of La. R.S. 14:32.1. Barber was originally sentenced by the trial court to 21 years’ imprisonment at hard labor, the first year to be served without benefits (to be served concurrently with a prior sentence for a previous driving while intoxicated conviction), plus a $2,000.00 fine. After Barber’s motion to reconsider sentence, the trial court vacated the original sentence and re-sentenced Barber to 20 years’ imprisonment at hard labor, the first to be served without benefits, credit for time served. Additionally, he was ordered to pay a $2,000.00 fine or to serve 9 months in jail or 150 hours of community service. Finally, Barber was ordered to participate in a court-approved substance abuse program. He now appeals his sentence, which for the following reasons, we affirm.

Facts

On the evening of December 3, 2005, Barber swerved his vehicle off of Highway 165 South in Monroe, Louisiana, onto the shoulder, striking Robert Alan Jacks, who was standing beside his eighteen-wheeler truck. Barber continued a short distance down the road, ran into the median and abandoned his vehicle. He walked to the Veteran’s Home where he telephoned his wife to pick him up. Barber asked his wife to lie for him; however, much to her credit, she refused to cooperate. Three days following the accident, Barber was finally arrested at his attorney’s office in Monroe. Barber later admitted to being under the influence of alcohol when |ahe killed Mr. Jacks; however, because Barber fled the scene and did not turn himself into police until later, there is no evidence of his blood alcohol level. The police investigation, which is part of the record, reflects that employees of the club where Barber was eating and drinking prior to the incident noted that they had served Barber numerous alcoholic beverages. In fact, one employee remembered that Barber was extremely intoxicated and was having trouble keeping his eyes open. That same employee did not notice Barber leaving the club, but did recall that Barber left without paying.

Barber was charged by bill of information with vehicular homicide and a hit and run fatality. The state agreed to dismiss the hit and run charge in exchange for Barber’s guilty plea to vehicular homicide. Barber pled guilty and was originally sentenced to 21 years’ imprisonment at hard labor, the first year to be served without benefits. Barber’s motion to reconsider sentence was granted and the original sentence was vacated. The trial court re-sentenced him to serve 20 years’ imprisonment at hard labor, the first year to be served without benefits, with credit for time served. Barber was further ordered to pay a $2,000.00 fine, with 9 months in jail to be served in default of payment or 150 hours of community service. Finally, Barber was ordered to participate in a court-approved substance abuse program. This appeal by Barber ensued.

Discussion

On appeal, Barber raises five assignments of error, all related to his sentence which he deems excessive. In reviewing claims of excessive | .¡sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.02/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.01/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.03/11/05), 896 So.2d 57, 2004-2380 (La.06/03/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Hampton, supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 |4(La.l993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467/La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2d Cir.01/24/07), 948 So.2d 379.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App. 2d Cir.01/27/05), 920 So.2d 866, writ denied, 2006-0478 (La.09/29/06), 937 So.2d 851. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 1994-0217 (La.06/03/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes, 42,093 (La.App. 2d Cir.05/9/07), 956 So.2d 779.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La. App. 2d Cir.12/13/06), 945 So.2d 267. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.05/16/00), 769 So.2d 1158.

lfiThe crime of vehicular homicide carries a penalty of imprisonment with or without hard labor for not less than two nor more than 30 years, with at least one year without benefits, in addition to a monetary fine of $2,000.00 to $15,000.00. La. R.S. 14:32.1. Here, the record clearly contains a sufficient factual basis for Barber’s sentence, including many mitigating factors, in compliance with La. C. Cr. P. art. 894.1. The record reflects that the trial court laboriously and meticulously considered an abundance of factors prior to imposing sentence. In fact, at re-sentencing, prior to reducing Barber’s sentence from 21 to 20 years’ imprisonment at hard labor, the trial court candidly noted that, “This case has been the hardest decision that I have made since being a Judge. I have put more time into this case and lost more sleep on this case than I have any case that I have handled up to date.” Finally, we note that the trial court extensively researched, examined and compared sentences in cases with similar circumstances in crafting the defendant’s sentence, as evidenced by the analysis filed into the record.

On this record and considering the particular facts at hand, we do not find constitutional error in Barber’s 20-year hard labor sentence and $2,000.00 fine. Barber received substantial benefits as a result of the plea bargain agreement. Notably, his deal saved his wife from possible prosecution, when he put her in jeopardy by asking her to protect him after committing the crime. Moreover, at the time Barber entered his guilty plea, he was still on probation as a result of an earlier DWI offense — he had two prior DWIs. We conclude that Barber’s conduct in committing the crime \Rsub judice is reprehensible— not only did he get behind the wheel of his car while intoxicated and kill an individual, but he then fled from the scene and attempted to involve his wife in his crime. Additionally, it is obvious that the effect of Barber’s feckless actions has been devastating to Mr. Jacks’ heartbroken family. So considering, we do not find that the sentence imposed is grossly disproportionate to the severity of the offense or that it is shocking to our sense of justice. The trial court’s sentence was not a manifest abuse of its discretion. For the foregoing reasons, Barber’s sentence is affirmed.

AFFIRMED.


author: MOORE, J. BROWN, C.J.,

text:
    Donna ROYALS, Plaintiff-Appellant v. TOWN OF RICHWOOD, Defendant-Appellee.
    No. 42,585-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.
    Rehearing Denied Nov. 29, 2007.

      Law Offices of Street & Street, by C. Daniel Street, Monroe, for Appellant.

      Hudson, Potts & Bernstein, L.L.P., by Brian P. Bowes, Travis Oliver, TV, Monroe, for Appellee.
    Before BROWN, MOQRE and. LOLLEY, JJ.
   MOORE, J.

hThe claimant, Donna Royals, appeals a judgment of the Office of Workers’ Compensation which denied her claims for supplemental earnings benefits (“SEB”), reimbursement of nonprescription medications and medical supplies, and prescriptions and physical therapy recommended by her treating orthopedic surgeon, and denied her claims for penalties and attorney fees for the employer’s failure to pay or provide these benefits. For the reasons expressed,, we reverse the denial of SEB, but in other respects affirm and render.

Factual Background

In August 2002, the Town of Richwood hired Ms. Royals as a school resource officer at Richwood High School; her job was to oversee the students and help maintain order, including breaking up any fights that may erupt in the two-story building. After making a perimeter check on the afternoon of September 9, 2002, Ms. Royals twisted her right knee while getting out of her patrol car. The next day, she reinjured the knee in the restroom of the police station. Her family doctor sent her to the hospital, where she obtained treatment; on October 16, 2002, she returned to light duty work as a dispatcher. Around this time, she also began buying over-the-counter pain relievers.

In late November 2002 she saw Dr. Douglas Brown, an orthopedic surgeon, who suspected a torn meniscus. He performed arthroscopic surgery on December 28, chiefly to debride and shave the meniscus; he prescribed therapy and kept her off work until January 13, 2003, when he released her to work as a dispatcher. However, Ms. Royals has never 12returned to work.

Nine days after the work release, Rich-wood’s claims manager, Risk Management Inc. (“RMI”), discontinued her therapy and medical treatment on grounds that the initial' accident was not work-related; it had never paid her any weekly indemnity benefits.

Ms. Royals filed a contested claim for compensation; after a trial in October 2003, the Workers’ Compensation Judge (“WCJ”) awarded her temporary, total disability benefits for approximately seven weeks ending January 13, 2003, SEB from that date onward, and penalties of $2,000 and attorney fees of $6,000 for the failure to pay temporary, total disability benefits and provide the therapy prescribed by Dr. Brown. On Richwood’s appeal, this court affirmed the finding of a work-related accident, reduced the statutory penalty to $1,000, and awarded claimant’s counsel $500 for having to defend the appeal. Royals v. Town of Richwood, 38,738 (La. App. 2 Cir. 8/18/04), 880 So.2d 208.

Meanwhile, Ms. Royals continued to buy over-the-counter pain relievers and knee braces; simultaneously, she was going to E.A. Conway Hospital for cortisone injections, Lortab and Bextra, but still complained of a locking sensation in her knee. In October 2004, she returned to Dr. Brown, who ordered an MRI. This showed progressive ' degenerative arthritis, which Dr. Brown ascribed to the initial accident. He recommended a complete knee replacement, which was performed in January 2005. He described the procedure as “uneventful,” and her postoperative progress as good. In late March 2005, he said she could return to “modified work.”

|aRMI then retained a vocational rehabilitation consultant, Younger & Associates, to perform a vocational assessment of Ms. Royals. On July 12, Younger’s employee, Alice Rogers-Bond, met with Richwood’s police chief, Robert Kelly, to get a job analysis of the position of school resource officer. She typed her report directly into her laptop computer; there were no original notes, to compare for accuracy. This report characterized the job as mostly sedentary to light, with frequent to intermittent standing and walking, and medium duty “only in cases where physical restraint would be necessary; however, she [Ms. Royals] had not had to implement this during her employment, 5%.” Ms. Rogers-Bond also checked “rarely” for stair climbing, or “up to one hour in an eight-hour day.” Chief Kelly generally confirmed the information in the job analysis, except that Ms. Royals had told him she actually arrested some students for fighting in her three-week tenure at Rich-wood High. He testified that if she had asked, he would have “made a place for her,” but that he had replaced her and his department had actually laid off several officers. He agreed that in her current condition, Ms. Royals could not work as a school resource officer.

Ms. Rogers-Bond sent the job analysis to Dr. Brown, who responded that the job fell within Ms. Royals’ physical capabilities. Dr. Brown gave her a full release to work on August 17, 2005. On receipt of this release, Richwood discontinued Ms. Royals’ SEB and medical benefits.

In May 2005, Ms. Royals filed the instant contested claim seeking reimbursement for mileage, medical expenses paid to her family doctor, and nonprescription medicines and medical supplies she bought from October 142002 through early January 2005. By amended claim, she contested the termination of SEB. By a second amended claim, she sought additional medical treatment from Dr. Brown, physical therapy, and reimbursement of E.A. Conway bills and prescription drugs, all arising from a knee injury sustained in a fall at her parents’ house in December 2005 when her right knee buckled or gave way beneath her. Each claim included a demand for penalties and attorney fees.

Action of the WCJ

The WCJ heard all three claims at a single trial in September 2006. After taking the case under advisement, the WCJ rendered oral reasons, carefully summarizing the testimony, Ms. Royals’ medical records and the job analysis prepared by Ms. Rogers-Bond. The WCJ noted that the job analysis was erroneous in stating that Ms. Royals had never had to use physical restraint during her employment; however, the rest of the report was clear that she would be required to use physical techniques to intervene in fights. Even when presented with this information, Dr. Brown did not recant his earlier approval of the job; the WCJ therefore denied any further SEB, together with the claim for penalties and attorney fees.

As for the nonprescription medicines and medical devices, the WCJ stated that the claimant’s burden was to prove that these items were reasonable, necessary and related to the initial injury. Noting that Ms. Royals was buying nonprescription items even while going to E.A. Conway for treatment and several prescription drugs, and that the medical records did not show that additional items were needed, the WCJ denied this claim, |Bas well as the request for penalties and attorney fees.

Finally, the WCJ found that Richwood failed to pay Ms. Royals’ family doctor’s fee, mileage and prescription costs within 60 days of receiving proof of the claim; for this, she assessed a penalty of $2,000 and an attorney fee of $5,000. However, she denied all other claims for medical expenses, as the medical records did not show that the fall at her parents’ house was related to the initial, compensable injury.

Discussion: Nonprescription Medical Expenses

By her first assignment of error, Ms. Royals urges the WCJ erred in failing to order reimbursement of her nonprescription medication and medical devices incurred during the period of denial of benefits. She contends that because of extreme pain, she tried several types of over-the-counter medications and salves, as well as a knee brace and two knee stabilizers. She concedes there is no caselaw approving the reimbursement of nonprescription medications, but submits that these expenses are authorized by La. R.S. 23:1203 A. By her fourth assignment, she argues the WCJ erred in failing to award penalties and attorney fees for Richwood’s refusal to pay these expenses.

Richwood responds that Ms. Royals had the burden of proving both that the treatment was necessary and related to the compensable accident. Todd v. Security Industrial Ins., 33,233 (La.App. 2 Cir. 5/15/00), 759 So.2d 1082. Aside from her own testimony, however, she presented no evidence that nonprescription medications were necessary, and the' WCJ was entitled to disbelieve her testimony. Taylor v. Wal-Mart Stores Inc., 40,179 (La.App. 2 Cir. 9/21/05), 914 So.2d 579, writ not cons., 2006-0144 (La.4/17/06), 926 So.2d 500, cert. denied, — U.S. -, 127 S.Ct. 982, 166 L.Ed.2d 783 (2007).

In the event of a compensable injury, the employer is obligated to furnish “all necessary drugs, supplies, hospital care and service, medical and surgical treatment, and any nonmedical treatment recognized by the laws of the state as legal.” La. R.S. 23:1203 A; Authement v. Shappert Engineering, 2002-1631 (La.2/25/03), 840 So.2d 1181. The claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by a work-related accident. Pardee v. Forest Haven Nursing Home, 42,321 (La.App. 2 Cir. 6/20/07), 960 So.2d 1216. The WCJ’s factual findings will not be set aside unless-they are clearly wrong in light of the record viewed in its entirety. Dean v. Southmark Construction, 2003-1051 (La.7/6/04), 879 So.2d 112; Pardee v. Forest Haven Nursing Home, supra.

The statute, R.S. 23:1203 A, does not distinguish between prescription and nonprescription medicines; however, the claimant still must prove that these items are reasonably necessary to treat a com-pensable injury. Ms. Royals incurred many of the claimed expenses while she was receiving treatment at E.A. Conway Hospital, but did not explain why over-the-counter analgesics like Advil and Tylenol were necessary on top of Lortab, Bextra, cortisone and Zoloft. At the deposition, nobody asked Dr. Brown if additional nonprescription items would have been needed. The WCJ found inadequate proof of their necessity, a factual finding that we |7cannot disturb on this record. In short, we per'ceive no manifest error in the denial of this claim and, a fortiori, the claim for penalties and attorney fees. These assignments lack merit.

Prescriptions and Physical Therapy

By her third assignment of error, Ms. Royals urges the WCJ erred in failing to award the cost of prescriptions and physical therapy ordered by Dr. Brown. These expenses arose from a fall in her back yard in September 2005 and a fall from her parents’ back porch in December 2005, both of which she ascribed to weakness in the replacement knee. She contends that if a work-related injury predisposes the claimant to a second injury, a causal connection is found and the claimant is entitled to compensation. Kelly v. City of New Orleans, 414 So.2d 770 (La.1982); Royals v. Tomb of Richwood, supra, and citations therein. She concedes that Dr. Brown recalled only the fall from her parents’ porch and did not ascribe it to her prior, work-related injury; however, she contends that the E.A. Conway records support her testimony that weakness in the replacement knee caused her to fall. By her fourth assignment, Ms. Royals urges the WCJ erred in failing to award penalties and attorney fees for the failure to pay for these items.

Richwood responds that in his deposition testimony, Dr. Brown clearly stated he was unaware how Ms. Royals injured her knee in March 2006, and that aside from her own self-serving testimony, there was no evidence to connect the two incidents. It concludes that the WCJ was not clearly wrong.

Is As noted, the WCJ’s factual findings will not be set aside unless they are clearly wrong in light of the record viewed in its entirety. Dean v. Southmark Construction, supra; Pardee v. Forest Haven Nursing Home, supra. The manifest error rule applies equally to findings based on live testimony and documentary evidence. Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308; Feild v. General Motors Corp., 36,339 (La.App. 2 Cir. 9/18/02), 828 So.2d 150.

In deposition, Dr. Brown said of Ms. Royals’ March 15, 2006, office visit: “She fell off her porch and I’m not sure how that happened, but, you know, whatever reasons she did and she wanted to have her knee checked[.]” Finding minor swelling, he diagnosed a hyperextension strain and recommended therapy. Notably, he was never asked whether the work-related injury could have caused or contributed to the fall. We have closely reviewed the records from E.A. Conway and find them inconclusive. The emergency room record of December 13, 2005, is virtually illegible, showing only that a 52-year-old white female “fell off porch” and reported a prior “surgery rt. knee, total knee.” The orthopedic clinic record of January 18, 2006, is slightly more legible, noting as the chief complaint, “R TKR [right total knee replacement] 1/05 by Dr. Brown, states knee gives out and fell 12/13/05,” but does not clearly show that any doctor or therapist attributed that fall to her work-related injury.

We are sensitive to the fact that a replacement knee might be unsteady, and to the jurisprudence that a compensable injury may predispose the claimant to subsequent injuries, but the WCJ found an 19absence of medical evidence to connect the incidents in this case. Although sitting as a fact finder we might perhaps have assessed this evidence differently, we cannot say on this record that the WCJ was plainly wrong to find a lack of causation. We perceive no manifest error in the denial of this claim and, a fortiori, the claim for penalties and attorney fees. These assignments of error lack merit.

Denial of SEB

By her second assignment, Ms. Royals urges the WCJ erred in failing to award her SEB. She contends that the vocational rehabilitation agent, Ms. Rogers-Bond, prepared a job description that was inaccurate at best, and this misled Dr. Brown into approving her for the job of school resource officer. She cites Chief Kelly’s candid admission that she cannot do the job with her bad knee, and submits that Richwood failed to prove that any other job was available to her. Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551. By her fourth assignment, Ms. Royals urges the WCJ was plainly wrong not to award penalties and attorney fees for Richwood’s termination of SEB.

Richwood responds that Ms. Royals’ argument is entirely factual and that the WCJ’s findings are not plainly wrong.

When work-related injuries do not result in total disability, but rather leave the employee unable to earn 90% of her preinjury wage, the statute authorizes an award of SEB. La. R.S. 23:1221(3). To prevail on an SEB claim, the employee must meet an initial burden of proving, by a preponderance of the evidence, that her work-related injury has resulted in |inan inability to earn that amount. Banks v. Industrial Roofing & Sheet Metal, supra; Taylor v. Columbian Chemicals, 32,411 (La.App. 2 Cir. 10/27/99), 744 So.2d 704. Only after the claimant makes this prima facie showing does the burden shift to the employer to show that employment is generally available within the claimant’s physical limitations and in her or the employer’s reasonable geographic region. Id. The WCJ’s factual findings on a claim for SEB are subject to the manifest error rule. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161; Taylor v. Columbian Chemicals, supra.

At trial and on appeal, the parties have vigorously argued whether the job analysis prepared by Ms. Rogers-Bond was accurate, and whether it misled Dr. Brown; the WCJ found that it was indeed inaccurate in one salient respect — stating Ms. Royals had never actually resorted to physical restraint during her three weeks as a school resource officer at Richwood High. The issue, however, is largely beside the point. Chief Kelly verified that the school resource officer would have to climb the stairs as needed to maintain order, and use physical restraint some 5% of the time. As Ms. Royals shows, Chief Kelly candidly admitted that she could not do the job in her current condition. Moreover, although Dr. Brown never entirely retracted his release to full-duty work, he wavered:

Well, my experience has been that people who work in factories that have several levels of stairs, let’s say that they have to go up and down frequently during the course 'of the day — and I’m talking about every hour they go up and down — do have problems with their knee replacement and it bothers them. * * * We don’t recommend people being in jobs where they have to really physically go up and down stairs frequently.

In With respect to breaking up fights among students, Dr. Brown said, “Well, I’m not sure she should be doing that whether she’s had a knee replacement or not. So she would be certainly less capable of doing that than a normal person.” Regardless of any deficiency of the job analysis, this record preponderates to show that Ms. Royals is unable to earn wages equal to 90% or more of her wages at the time of the injury.

The burden therefore shifted to Rich-wood to show that employment was generally available within Ms. Royals’ physical limitations and in her or the employer’s reasonable geographic area. La. R.S. 23:1221(3)(c)(i); Banks v. Industrial Roofing & Sheet Metal, supra. The record contains no evidence whatsoever regarding any other employment that would meet these criteria. Chief Kelly admitted that owing to fiscal difficulties, the town had laid off several employees; he did not mention any openings. On this record, Richwood did not rebut Ms. Royals’ prima facie showing of qualification for SEB. The judgment will be reversed, ordering the reinstatement of SEB effective August 17, 2005, and continuing in accordance with law.

By her fourth assignment, Ms. Royals contests the WCJ’s failure to award penalties and attorney fees for Richwood’s arbitrary and capricious termination of SEB. La. R.S. 23:1201 1. We find, however, that Richwood acted on the strength of Dr. Brown’s work release; on the record presented, this negates any showing of a “willful and unreasonable action, without consideration and regard for the facts and circumstances presented.” J.E. Merit Constructors v. Hickman, 2000-0943 (La.1/17/01), 776 So.2d 435. | ^Moreover, the finding of the WCJ in favor of the employer is “virtually conclusive that its actions were reasonable and were not arbitrary and capricious.” Id. It is very rarely appropriate for an appellate court to award penalties and attorney fees based on an employer’s actions which the trier of fact previously found not to be arbitrary and capricious, and this case is not one of those rare exceptions. The instant claim under R.S. 23:1201 I is without merit.

Additional Attorney Fees

By her fifth assignment of error, Ms. Royals seeks additional attorney fees for work on this appeal. She shows that this court awarded additional attorney fees in the previous appeal, Royals v. Town of Richwood, supra, and requests a reasonable amount for pursuing the instant appeal.

Richwood responds that an increase in attorney fees is usually awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated additional work on the part of plaintiffs counsel, provided the plaintiff appropriately requests an increase. Smith v. Tudor Const. Co., 25,783 (La.App, 2 Cir. 5/4/94), 637 So.2d 666. Richwood concludes there is no authority to award additional attorney fees to the claimant’s attorney for pursuing her own appeal.

A workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending the employer’s unsuccessful appeal. Frith v. Riverwood Inc., 2004-1086 (La.1/19/05), 892 So.2d 7. Ms. Royals is obviously not entitled to additional attorney fees under this theory as Richwood did not take the instant appeal.

11sThe court of appeal may also award attorney fees on appeal if it finds that the employer wrongly failed to begin paying benefits in violation of La. R.S. 23:1201 F, or wrongly discontinued benefits in violation of La. R.S. 23:1201 I. For the reasons already discussed, Richwood was not arbitrary, capricious or without probable cause in discontinuing Ms. Royals’ SEB when it received the work release. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is reversed insofar as it denied the claim for continued SEB. Judgment is rendered herein in favor of Donna Royals and against the Town of Richwood, awarding Ms. Royals supplemental earnings benefits in the amount of $200.00 per week, beginning August 17, 2005, together with legal interest thereon from due date of each payment until paid, and continuing in accordance with law. The judgment is in all other respects affirmed. Costs of appeal totaling $981.75 are to be paid by the Town of Richwood.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.

BROWN, C.J., concurs in part, dissents in part.

BROWN, C.J.,

concurring in part and dissenting in part.

|,I agree that claimant was clearly entitled to supplemental earnings benefits (SEB). The town’s consultant, Younger & Associates, discontinued payment of SEB without consulting with the town’s police chief. The chief testified that he knew that claimant could not do the work as a resource officer and that he had no other job available. The chief agreed that the job description presented by Younger & Associates to Dr. Brown was inaccurate. What the chief knew is attributable to the town. I would award attorney fees as the town knew that claimant was unable to do the work required when its consultant, Younger & Associates, abruptly cut off the SEB.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.