author: THIBODEAUX, Chief Judge.

text:
    DeWayne S. EAVES, et al. v. SPIRIT HOMES, INC., et al.
    No. 06-49.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Fred Andrew Pharis, Pharis & Pharis, Alexandria, LA, for Plaintiffs/Appellees, Dewayne S. Eaves and Shirley Stroud.
    Russell L. Potter, Stafford, Stewart, & Potter, Alexandria, LA, for Third Party Defendants/Appellees, Leslie Roshong d/b/a Arrow Mobile Home Movers.
    Dana A. Bolton, Baton Rouge, LA, for Third Party Appellants, Quality Mobile Homes, Inc. and Gregory D. Lord.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

LDeWayne S. Eaves and Shirley Faye Stroud (Eaves), brought an action for red-hibition against the manufacturer, Spirit Homes, Inc., and the sellers, Quality Mobile Homes, Inc. and its owner, Dr. Gregory D. Lord (Quality or Dr. Lord), alleging numerous defects in their newly-purchased mobile home. Dr. Lord, as owner and liquidator of Quality Mobile Homes, Inc., filed a third-party demand against the installers and movers of the mobile home, Leslie Roshong d/b/a Arrow Mobile Home Movers (Arrow), after learning that Arrow had wrecked the home during delivery. An arbitrator found that there were no redhibitory defects at the time of sale; rather, the damages occurred solely as a result of the negligence of Arrow in delivering and installing the mobile home. Pursuant to the findings of the arbitrator, the trial judge rendered judgment against Dr. Lord in the amount of $2,500.00 plus legal interest and costs.

Dr. Lord subsequently paid Eaves a total of $5,248.79 and sought indemnity for that amount from Arrow. Dr. Lord also sought reimbursement of his attorney fees and court costs of $33,902.75 and of his lost income of $6,475.00, as well as his portion of the arbitration fees. Arrow reimbursed Dr. Lord the amount of the original judgment plus legal interest and costs totaling $5,248.79, that Dr. Lord was required to pay to Eaves. However, Arrow asserted in a motion for summary judgment that it was not liable for Dr. Lord’s own expenses and costs in the litigation. The trial judge denied Arrow’s motion for summary judgment as to the arbitration fees but granted a partial summary judgment finding that Arrow was not liable for Dr. Lord’s lost income or his attorney fees and court costs in defending the suit or in bringing the third party demand. It is from this partial summary judgment that Dr. Lord appeals. For the following reasons, we affirm the judgment of the trial court.

_kL

ISSUE

We must decide whether the trial court erred in granting partial summary judgment exculpating the mover/installer, Arrow, for the attorney fees and lost income of the seller, Dr. Lord.

II.

FACTS AND PROCEDURAL HISTORY

In July 1999, Eaves purchased a new mobile home, or manufactured home, for his mother and himself from Quality Homes, Inc., financing a portion of the purchase price via an installment contract with Quality. The cost of the home with tax was $31,175.00, and the finance charge over the life of the loan was $40,429.00. Eaves’ mother, Shirley Faye Stroud, provided the downpayment for the manufactured home and made the installment payments. However, she was not a party to the contracts. The contract of sale included an express warranty and also the delivery and set-up of the home. Quality enlisted the services of Arrow to move and install the home onto the lot of Eaves. However, Quality did not enter into a written contract with Arrow for the delivery of the home, and there was no contract between them for indemnification and attorney fees should the home become damaged during delivery. Arrow was apparently forced off the road while delivering the home to Eaves’ lot, and the home sustained damage in transit.

Subsequent to delivery, Eaves and his mother identified numerous defects in the home, including but not limited to dents, bowed walls, offset moldings, nails coming loose, and floors and doors that were not level. Attempted repairs did not resolve the problems. On February 11, 2000, Eaves filed a redhibition suit, 1 sdemanding that the sale and installment contracts be cancelled and rescinded. The petition alleged hidden manufacturing defects that existed at the time of sale.

Quality filed an exception of prematurity alleging that Eaves had executed an arbitration agreement and then failed to submit the matter to binding arbitration. Eaves fought the arbitration and various exceptions by the defendants for several years, filing four supplemental petitions. During that time, Dr. Lord liquidated Quality and assumed the debts of the corporation. He also learned through discovery that Arrow, had wrecked the home during delivery, causing damage to the home.

Dr. Lord filed a third-party demand against Arrow. Eaves then filed a Fifth Supplemental and Amending Petition adding Arrow as a defendant. However, when the matter was ultimately submitted to binding arbitration, Eaves’ claims against Arrow were not submitted, since Arrow was not a party to the contract providing for arbitration.

The arbitrator found that Eaves was the sole purchaser of the manufactured home and that he failed to prove redhibitory defects at the time of sale. The arbitrator further found that the home was damaged during delivery by the sole negligence of Arrow, that the seller, Dr. Lord, was responsible to Eaves for Arrow’s negligence, and that the remaining damage could be repaired for not over $2,500.00. The trial court adopted the ruling of the arbitrator, and Dr. Lord subsequently paid Eaves $5,248.79 for the judgment and for Eaves’ legal costs. Arrow reimbursed Dr. Lord this amount for Eaves’ damages.

Dr. Lord sought further reimbursement and indemnification from Arrow for his lost income of $6,475.00, due to his having to attend a deposition and a four-day arbitration, and for his attorney fees of $33,902.75. Arrow filed a Motion for Partial Summary Judgment asserting that it was liable for only the $2,500.001 Judgment awarded to Eaves and against Dr. Lord, and that Dr. Lord could not recover his own attorney fees and other costs absent a contractual agreement or a statutory entitlement. The trial court granted summary judgment in part to Arrow as to Dr. Lord’s claims for attorney fees and lost income. The trial court’s judgment denied summary judgment to Arrow as to the claims of Dr. Lord for the arbitration fees, expert fees, and judicial interest awarded against Dr. Lord in the arbitration proceedings. The sole issue on appeal is whether the trial court erred in granting summary judgment to Arrow on the issue of Dr. Lord’s lost income and attorney fees.

1 — l h-1 I — !.

LAW AND DISCUSSION

Standard of Review

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, that is, whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t., 04-66 (La.7/6/04), 880 So.2d 1.

The Seller’s Rights and Obligations

Dr. Lord contends that as the innocent but statutorily responsible dealer or seller, he is entitled to be reimbursed his lost income and his own attorney fees expended in defending against claims resulting from the wrongful acts of Arrow. Dr. Lord argues that Eaves claimed $11,000.00 in repairs to the home and that it was Dr. Lord’s attorneys who successfully reduced that figure to $2,500.00. Dr. Lord therefore asserts that he is entitled to indemnification from Arrow for all of his expenses of the litigation. However, Dr. Lord did not have a written contract with Arrow that provided for indemnification and attorney fees.

|rAs a general rule, Louisiana law does not provide for the recovery of attorney fees in the absence of a specific statutory provision allowing such recovery or a contractual agreement by the parties to pay attorney fees. Kinsinger v. Taco Tico, Inc., 03-622 (La.App. 5 Cir. 11/12/03), 861 So.2d 669; Richey v. Moore, 36,785 (La.App. 2 Cir. 3/7/03), 840 So.2d 1265, writ denied, 03-987 (La.5/30/03), 845 So.2d 1054. See also, Gen. Motors Acceptance Corp. v. Meyers, 385 So.2d 245 (La.1980); LeBlanc v. State Farm Ins. Co., 03-1522 (La.App. 3 Cir. 5/26/04), 878 So.2d 715, writ not considered by, 04-1642 (La.10/08/04), 883 So.2d 1023. • In the present case, it is undisputed that Dr. Lord merely enlisted the services of Arrow to move and install the mobile home by oral agreement, and that there was no written contract between them. Accordingly, there is no contractual agreement by the parties to pay attorney fees.

The statutes governing the manufacture, sale, and installation of manufactured homes are found at La.R.S. 51:911.21, et seq., known as the “Uniform Standards Code for Manufactured Housing.” For the protection of the buyer, those statutes currently provide product warranty and licensing requirements for manufacturers, retailers (dealers and sellers), and installers of manufactured homes. However, the statutes underwent revisions pursuant to Acts 2001, No. 718, § 2. In 1999, when Eaves purchased the subject manufactured home from Dr. Lord and received delivery and installation of the home from Arrow, the statutes did not require a warranty by the installer.

|KFor purposes of this litigation, the pertinent statutes in.the Uniform Standards Code for Manufactured Housing (hereinafter referred to as, “Manufactured Housing Code”) are La.R.S. 51:911.24.1 and 51:911.25.

Except for the substitution of “dealer(s)” with “retailer(s),” La.R.S. 51:911.24.1 maintains the same language as it did in 1999, and provides in pertinent part as follows:

C. Notwithstanding the terms of any franchise, sales, or other contractual agreement, each manufacturer shall indemnify and hold harmless its retailers against any judgment for damages, in~ eluding but not limited to court costs and reasonable attorney fees of the retailer, arising out of complaints, claims, or lawsuits including but not limited to strict liability, negligence, misrepresentation, express or implied warranty, or rescission of sale! to the extent that the judgment arises out of alleged defective or negligent manufacture, assembly, or design of manufactured homes, parts, or accessories or other functions of the manufacturer, which are beyond the control of the retailer.

Accordingly, the Manufactured Housing Code did and does provide for the seller or retailer, such as Dr. Lord, to receive indemnification or reimbursement of his own attorney fees from the manufacturer under certain circumstances. However, this statute does not provide for indemnification including attorney fees \qfrom an installer. In 1999, the only statute in the Manufactured Housing Code that addressed the acts of the installer was La. R.S. 51:911.25 which provided in pertinent part as follows:

A. Each new manufactured home ... shall be covered by warranties of the manufacturer....
B. Each such manufactured home sold by a dealer licensed by this state shall be covered by written warranties which shall be furnished by the manu-factwrer and the dealer, which shall obligate them to warrant as a minimum, the following:
(1) Compliance with standards. The manufacturer shall warrant that the manufactured home complied with the Code and the requirements of this Part....
(2) Defects. The manufacturer shall warrant that the manufactured home was manufactured free from any defects ... and was delivered to the dealer in such condition. Neither the manufacturer nor the dealer shall be liable under the warranty for any defect in the manufactured home which is the result of improper setup, moving, or defects in work or materials done or furnished by persons other than the manufacturer or dealer, unless such setup, moving, work, or materials were done or furnished by a person under contract with, or connected by agency with such manufacturer or dealer, (emphasis added)

Accordingly, under La.R.S. 51:911.25(B)(2), Dr. Lord is liable for the improper moving and set-up by Arrow because, while there was no written agreement between Dr. Lord and Arrow, there was a verbal contract and an agency relationship wherein Arrow was hired by Dr. Lord to move and install the home onto the property of Eaves. Arrow did not contract with Eaves to move and install the home; Arrow contracted with, and was the agent of, Dr. Lord. While La.R.S. 51:911.25(A)(2) currently provides that the installer must warrant to the buyer that the manufactured | shome was “installed according to the Minimum Standards for Installation of Manufactured Homes (R.S. 51:912.21 et seq.),” there was no such responsibility imposed upon the installer in 1999.

Rather, the statutes appeared to impose a kind of vicarious liability onto the seller who contracts with an installer to move and set up a mobile home in much the same manner as the seller would be liable if his own employee had moved and installed the home. This obligation of the seller who does, after all, profit from the sale, is in keeping with our Civil Code which also provides for the seller’s obligations of delivery and warranty: “The seller is bound to deliver the thing sold and to warrant to the buyer ownership and peaceful possession of, and the absence of hidden defects in, that thing. The seller also warrants that the thing sold is fit for its intended use.” La.Civ.Code art. 2475.

While there is and was a provision in 1999 in the Manufactured Housing Code that required a manufacturer to indemnify a seller for the seller’s own losses, La.R.S. 51:911.24.1(0), there was no provision requiring Arrow as the installer to indemnify Dr. Lord as the seller or dealer for any damages caused by Arrow. Moreover, while the more recent 2001 revisions require the installer to give a warranty of proper installation to the buyer, the revisions still do not contain a provision directly requiring the installer to indemnify the seller. We are not called upon to decide what effect the new requirement for installer warranty might have on a seller’s request for reimbursement from the installer. Accordingly, we will leave that for another day. In the present case, Dr. Lord has not asserted any statute that would allow him to recover his own attorney fees and expenses.

Dr. Lord argues that he is entitled to be indemnified for, or reimbursed, his legal fees and lost income because pursuant to Green v. TACA Int’l Airlines, 304 So.2d 357 (La.1974), indemnity “shifts the entire loss from a tort-feasor only | technically or constructively at fault to one primarily responsible for the act that caused the damage.” Id. at 359 (emphasis added). However, in the Green case, the “entire loss” referenced therein was an award to the airline of “full indemnity for its liability to plaintiffs.” Id. (Emphasis added). Accordingly, the “entire loss” referred to the plaintiffs losses in damages and attorney fees, not the statutorily liable defendant’s losses in defending the suit.

The Louisiana Supreme Court in Nassif v. Sunrise Homes, Inc., 98-3193 (La.6/29/99), 739 So.2d 183, cited the Green case and made it abundantly clear that the reference to “entire loss” means the plaintiffs loss. The court stated that “[a]s a general rule, attorney fees are not allowed except where authorized by statute or contract.” Id. at 185. However, the court distinguished between a defendant’s action for his own attorney fees and an action for indemnity, finding that an action for implied indemnity included attorney fees, but only the attorney fees that the defendant third-party plaintiff was bound to pay the original plaintiff. More specifically, the court stated:

Because Coast [defendant/third party plaintiff] is seeking indemnity for the attorney fees it was compelled to pay Nassif [plaintiff], rather than reimbursement for its own attorney fees, we must begin by examining the basic law of indemnity, and the distinction between an action for indemnity and an action for attorney fees.
Indemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed. Black’s Law Dictionary 769 (6th ed.1990); 42 C.J.S. Indemnity § 2 (1991). It is based on the principle that everyone is responsible for his own wrongdoing, and if another person has béen compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss. 42 C.J.S. Indemnity at § 32. The obligation to indemnify may be express, as in a contractual provision, or may be implied in law, even in the absence of an indemnity agreement. Id. at § 29. An implied contract of indemnity arises only where the 11f)liability of the person seeking indemnification is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to be imposed. Bewley Furniture Co., Inc. v. Maryland Cas. Co., 285 So.2d 216, 219 (La.1973).

Id. at 185.

The Nassif court went on to explain the theoretical basis of indemnity as the general obligation to repair the damage caused by one’s fault pursuant to La.Civ. Code art. 2315, and the moral maxim that one person should not enrich himself at the expense of another. The Nassif court then differentiated between an action for indemnity and an action for attorney fees and stated as follows:

Applying similar concepts, the Supreme Court of Oklahoma, in United Gen. Ins. Co. v. Crane Carrier Co., 695 P.2d 1334 (Okla.1984), distinguished between an action for attorney fees and an action for indemnity. In that case, the court stated:
We therefore hold that where the jury returns its verdict in favor of the defendant third-party plaintiff against the third-party defendant for the full amount of the judgment awarded against the defendant third-party plaintiff, the defendant third-party plaintiff is not entitled to recover from the third-party defendant the attorney’s fees expended in litigating the third-party action for the reason that the indemnitee cannot recover attorney fees ... in the absence of an express contract for such indem-niñcation.

Nassif, 739 So.2d at 186 (quoting United Gen. Ins. Co. v. Crane Carrier Co., 695 P.2d at 1339) (emphasis added). The Nas-sif court agreed with the assessment in the Oklahoma case and held that the defendant third-party plaintiff in Nassif was entitled to recover from the third-party defendant the attorney fees that the plaintiffs recovered from the defendant under the general rules of indemnity. Accordingly, the court stated:

[A]n action for indemnity is a separate substantive cause of action, independent of the underlying wrong, and distinct In from an action for attorney fees.... [T]he equitable principle of restitution applies in an action for indemnity to allow a defendant who is only technically or constructively liable for a plaintiffs loss to recover from the party actually at fault the attorney fees it was compelled to pay the plaintiff, even in the absence of a statute or contract of indemnification. This measure of relief is in accordance with the long standing principle that “[ijndemnity shifts the entire loss from a tortfeasor only technically or constructively at fault to one primarily responsible for the act that caused the damage.” Green v. TACA Int’l Airlines, 304 So.2d 357, 359 (La.1974) (emphasis added).

Id. at 186-87.

Based upon the foregoing, where there was no written contract for indemnity or for attorney fees between Dr. Lord and Arrow, Dr. Lord is entitled to indemnity from Arrow under a theory of implied indemnity which covers only the damages and attorney fees of the original plaintiffs, Eaves, that Dr. Lord was obligated to pay in the main demand. Accordingly, Arrow has reimbursed Dr. Lord the amount of the $2,500.00 judgment in favor of Eaves plus legal costs and interest in a total amount of $5,248.79, and that is all that Dr. Lord is entitled to under the theory of implied indemnity. As for Dr. Lord’s claim to attorney fees as special damages which he prayed for in his petitions, there clearly is no contract for attorney fees between Dr. Lord and Arrow, and Dr. Lord cites no statute providing for his reimbursement of his own attorney fees.

Dr. Lord cites Daigle v. Volkswagen of America, Inc., 580 So.2d 722 (La.App. 3 Cir.1991), and La.Civ.Code art. 2545 for the proposition that the innocent seller is entitled to reimbursement of its own attorney fees and losses associated with defending the suit. In Daigle, where the seller was found innocent but nonetheless had to prepare for and attend trial, the court ordered the bad faith automobile manufacturer to reimburse attorney fees to the good faith seller for the seller’s | ^defense against the main demand of the purchaser, for the seller’s third party demand against the manufacturer, and for the seller’s appeal.

However, Daigle is not analogous to the current litigation because the faulty party being sued for attorney fees in the current litigation is the installer, not the manufacturer. Following a. fourth circuit case, the majority in Daigle appears to have erroneously based its award of attorney fees on La.Civ.Code art. 2545 which provided at the time, and still provides, that a bad faith seller is liable to the buyer for the buyer’s attorney fees. However, the issue in Daigle involved a good faith seller and reimbursement of attorney fees to that good faith seller. In any event, the concurring opinion in Daigle cites La.Civ. Code art. 2531, which at all times pertinent hereto, has provided a remedy against the manufacturer for the loss sustained by the good-faith seller. More specifically, the second paragraph of La.Civ.Code art. 2531 provides as follows:

A seller who is held liable for a redhi-bitory defect has an action against the manufacturer of the defective thing, if the defect existed at the time the thing was delivered by the manufacturer to the seller, for any loss the seller sustained because of the redhibition. Any contractual provision that attempts to limit, diminish or prevent such recovery by a seller against the manufacturer shall have no effect.

| ^Accordingly, both La.Civ.Code art. 2531 and La.R.S. 51:911.24.1(0), which text was stated earlier in this decision, provide for reimbursement from the manufacturer to the seller of the seller’s losses in defending against the claims of the buyer under certain circumstances. However, neither the Civil Code article nor the revised statutes imposes a requirement on the installer to reimburse the seller for the seller’s losses in defending against the claims of the buyer. Article 2531 is further inapplicable in the present case because no redhi-bitory defects were found.

Dr. Lord also cites Holden v. Clearview Dodge Sales, Inc., 416 So.2d 335 (La.App. 4 Cir.), units denied, 421 So.2d 248, 421 So.2d 249 (La.1982), which was relied upon by the Daigle court. However, as in Dai-gle, the issue in Holden was the manufacturer’s, not the installer’s, reimbursement to the good faith dealer of the dealer’s attorney fees. Accordingly, Holden is also distinguishable from the instant case.

As to Dr. Lord’s claim for his lost income in the amount of $6,475.00, due to his having to attend a deposition and a four-day arbitration, Arrow cites Evans v. Century Ready Mix Corp., 446 So.2d 860 (La.App. 2 Cir.1984). There, the court found that lost income due to trial preparation was not an item of damages reasonably contemplated in a sale of the concrete product at issue. More specifically, the Evans court found that lost earnings “is but a remote and indirect consequence of the breach of contract and does not fall within the ambit of the reasonable contemplation of the parties as provided in La. Civ.Code art.1934,” relative to offer and acceptance. Id. at 862. Under the present set of circumstances, we agree with this assessment.

JjilV.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court which granted partial summary judgment to Arrow on the issues of Dr. Lord’s attorney fees and lost income. Costs of this appeal are assessed against Dr. Lord.

AFFIRMED.

      . Following revisions in 2001, La.R.S. 51:911.25 currently provides as follows:
      A.Each new manufactured home, sold as such shall be covered by warranties that shall protect only the first retail purchaser of the manufactured home, for a period of one year from the date of the purchase, in accordance with the terms of the warranty:
      (1) The manufacturer shall warrant, in writing, that the manufactured home was in compliance with the Code and the requirements of this Part at the time of manufacture.
      Further, the manufacturer shall warrant that the manufactured home was manufactured free from any defects in materials or workmanship as outlined in the Code.
      (2) The installer shall warrant that the manufactured home was installed according to the Minimum Standards for Installation of Manufactured Homes (R.S. 51:912.21 et seq.).
      (3)The manufacturer, retailer, or installer shall not be liable for any defect in the manufactured home which is the result of improper setup, moving, or defects in work or materials done or furnished by persons other than the manufacturer, retailer, or installer.
      B. Manufactured homes sold as used manufactured homes shall not be covered by a warranty unless provided for in writing outlining the terms and conditions of the warranty-
      C. The warranty required by this Part shall be in addition to ahd not in derogation of any other warranties, rights, and privileges which the buyer may have under any other law or instrument. The buyer may not waive his rights under this Part and any such waiver is hereby prohibited as contrary to public policy and shall be unenforceable and void.

      . Prior to the 1993 revision, La.Civ.Code art. 2545 was entitled, "Liability of seller for concealment of vice,” and provided that, "[t]he seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages. (Amended by Acts 1968, No. 84, § 1.).” Smith v. H.J. Landreneau Bldg. Contractor, Inc., 426 So.2d 1360, 1362 (La.App. 3 Cir.1983).
      Under the 1993 revision, La.Civ.Code art. 2545 is entitled, "Liability of seller who knows of the defect; presumption of knowledge,” and provides that "[a] seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits. A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.”


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dallas D. DURGAN.
    No. KA 05-1642.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Dallas D. Durgan.
    Ronald Augustin Rossitto, Fourteenth Judicial District Court District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

l iOn February 27, 2003, Defendant, Dallas D. Durgan, was charged by bill of information with one count of possession of CDS II (cocaine) with intent to distribute, in violation of La.R.S. 40:967(A)(1). On March 7, 2003, Defendant pled not guilty to the offense charged. When trial commenced on September 16, 2003, Defendant waived his right to a jury trial. After both the prosecution and the defense presented their side of the case, the trial court found Defendant guilty as charged.

At the conclusion of trial, the district court ordered a pre-sentence investigation. On October 3, 2003, the trial court sentenced Defendant in accordance with the joint recommendation of both parties: twenty years at hard labor with the first two years to be served without benefit of probation, parole, or suspension of sentence.

Defendant filed a post-conviction relief application on May 13, 2005, seeking reinstatement of his right to appeal. On August 3, 2005, the trial court granted Defendant’s request for an out-of-time appeal. Defendant now appeals, arguing that there was insufficient evidence to convict him of the offense charged.

STATEMENT OF FACTS

Joshua Reich, now a counter-terrorism manager for the Louisiana Office of Homeland Security, was the prosecution’s first witness. Between 4:45 p.m. and 4:50 p.m. on June 20, 2003, Mr. Reich was working as a patrolman with the Lake Charles Police Department; as of that date, Mr. Reich had one year of experience as a patrol officer. As Mr. Reich drove down Pine Street, he noticed a gray or brown older model Cadillac sedan stopped in the middle of the road. Defendant, who is ^approximately six feet tall, sat halfway inside the passenger side of the vehicle with the door open. On cross-examination, Mr. Reich explained that he had seen Defendant approach the stopped sedan and enter its passenger side. Mr. Reich explained that drug dealers on foot frequently flag down vehicles and sell drugs to the drivers. In Mr. Reich’s experience, that kind of activity indicated that a narcotics deal was taking place. As Mr. Reich approached the vehicle in his patrol car, the sedan sped away, running a stop sign and making Defendant almost fall to the ground.

Mr. Reich stopped his patrol car, called another unit for backup, left his lights on, and got out of the patrol car. As Mr. Reich exited his patrol vehicle, he identified himself as a police officer and told Defendant to stop. Defendant got up and ran away, pursued on foot by Mr. Reich. During the pursuit, Mr. Reich saw Defendant reach into his mouth and throw away a small package; Mr. Reich noted the location where the package landed. The pursuit ended when Defendant stopped and turned to face Mr. Reich, which was ten or fifteen feet from the point where Defendant had discarded the package. When Mr. Reich ordered Defendant to get on the ground, he resisted; a struggle ensued, wherein Mr. Reich subdued Defendant, maneuvered him onto the ground, and handcuffed him.

Mr. Reich then helped Defendant off the ground and walked him back to the patrol unit where another officer, Corporal Stock-man, had already arrived at the scene and secured the area. Mr. Reich asked Corporal Stockman to hold Defendant while Mr. Reich returned to look for the discarded package. Mr. Reich easily and quickly located the small wet package. The discarded package contained ten to eleven rocks of crack cocaine. Mr. Reich testified that the amount of crack cocaine found in the package and Defendant’s behavior were consistent with sale of illegal drugs. It is not unusual for a drug dealer to be arrested without money on him because, often, another ^person working with the dealer holds the money. Three to four people were in the nearby area.

Allen Reinecke, who works for the Lake Charles Police Department as an evidence technician, was the second witness called to testify for the State. Mr. Reinecke detailed the chain of custody within the police department for the bag and the substance contained therein. The third witness to testify for the prosecution was Margaret Luckie, who is an evidence technician at the Southwest Louisiana Crimi-nalistic Laboratory. Ms. Luckie testified to the evidence’s chain of custody within the crime lab. The last witness called by the State was Gary Rogers, the director for the crime lab, who testified as to the testing and identity of the substance found by Mr. Reich; the substance was an off-white material weighing 0.82 grams, less than ⅜8 of an ounce, and containing a cocaine base.

In response to the State’s case, Defendant testified on his own behalf. Defendant had been walking down the street with a girl when a white Cadillac Deville pulled up to them. Someone in the vehicle opened the passenger door and called the girl to the car. After speaking with the people in the car, the girl returned to Defendant and told him that one of his friends had died that morning. After hearing what the girl had to say, Defendant began to walk to his deceased friend’s house.

Defendant turned around and saw Mr. Reich getting out of his unit. Mr. Reich acted like he had not seen the Cadillac, walked toward Defendant, and asked Defendant why he flagged down the car. When Defendant exclaimed that he had not flagged the car down, Mr. Reich approached him and told him to get against the car. Defendant then ran away until Mr. Reich told him to stop or be maced. Defendant 14stopped and laid down on the ground, which was when Mr. Reich arrested him for trespassing and resisting arrest.

After some conversation, two more police ears arrived. In talking to the two newly arrived police officers, Mr. Reich told them that he had not seen Defendant throw anything. Mr. Reich then left to make sure that no drugs had been discarded. When Mr. Reich returned with the drugs, he again arrested Defendant, this time for the drugs, and again stated that he had not seen Defendant throw any drugs. Defendant averred that the drugs were not his.

On cross-examination, Defendant admitted that he had twice previously been convicted of distribution of cocaine, but Defendant stated that he had never flagged down a car to sell his drugs.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENT OF ERROR

Defendant argues that his conviction should be reversed because there was insufficient evidence to support a finding that he possessed cocaine with intent to distribute. Defendant asserts that the State failed to prove that he had specific intent to distribute the cocaine. Defendant contends that his mere presence at the passenger door of a vehicle does not prove an intent to distribute.

In determining sufficiency of the evidence on appeal, this court has previously stated:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could | shave 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 ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902 (quoting State v. Lambert; 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony; thus, a reviewing court may impinge on the ‘fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.’ ” State v. Johnson, 03-1228, pp. 4-5 (La.4/14/04), 870 So.2d 995, 998, (quoting State v. Sylvia, 01-1406, p. 2 (La.4/9/03), 845 So.2d 358, 361).

In finding Defendant guilty, the district court focused its statement solely on witness credibility rather than elements of the offense:

Defendant was charged by bill of information with possession of CDS Schedule II with intent to distribute. There are basically two stories about what happened, that of the police officer who was the arresting officer and that of the defendant.
I find the defendant’s version basically incredible. I know of no reason why the officer should sit and make up a story about what happened, finding drugs at a location where he particularly says that he observed them being thrown.
|f;I was a little concerned about the addresses of O’Brien and Pine Street, but I’m satisfied that they’re basically eattycorner or directly behind one or the other.
The defendant’s story is supported by no one. There are other people who could have come forward. He talked about his probation officer who could have come forward and said something about him.
He talked about the girl who he was with who could have come forward and said what happened.
He talked about the people in the car whom he knew who could have come forward and said something about it.
And his story is basically unsubstantiated. And because of his prior criminal history, I discount completely everything that he says. I find him guilty as charged.

In pertinent part, La.R.S. 40:967(A)(1) states, “[I]t shall be unlawful for any person to .knowingly or intentionally ... possess with intent to ... distribute ... a controlled dangerous substance or controlled substance analogue classified in Schedule II.” Cocaine is one of the controlled dangerous substances classified in Schedule II. La.R.S. 40:964(II)(A)(4). Thus, the prosecution must have proved that (1) Defendant knowing and intentionally possessed cocaine and that (2) Defendant intended to distribute the cocaine.

In State v. Hamilton, 546 So.2d 554 (La.App. 1 Cir.1989), the first circuit found knowing and intentional possession of cocaine in similar circumstances. A police officer, while patrolling an area known for drug trafficking, observed Hamilton and another man acting in a manner consistent with a narcotics transaction. The officer then saw Hamilton throw a small black object as the police unit approached. A search of the area located a small black metal box containing two bags of cocaine.

In State v. Senegal, 542 So.2d 792 (La.App. 3 Cir.1989), this court also found sufficient evidence to support a finding of knowing and intentional possession of cocaine in similar circumstances. A detective watched as Senegal threw three pack-etsjjcontaining a white powdery substance behind an arcade game. Chemical analysis revealed that one of the packets contained cocaine.

Because the prosecution presented Mr. Reich’s testimony that he saw Defendant discard the package and then later recovered the package from where he had seen that package land, it proved that Defendant knowingly and intentionally possessed the package and its contents. Additionally, the State introduced the chemical analysis of the substance contained in the package showing that the substance was 0.82 grams of cocaine. Thus, the State introduced sufficient evidence to show that Defendant knowingly and intentionally possessed cocaine.

This court has previously set out the appropriate analysis for determining whether the prosecution proved that Defendant intended to distribute the cocaine:

[Defendant’s] intent to distribute may be established by proving circumstances surrounding defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Ramoin, 410 So.2d 1010 (La.1981); State v. Williams, 457 So.2d 902 (La.App. 3rd Cir.1984), writ denied, 461 So.2d 313 (La.1984). In State v. House, [325 So.2d 222 (La.1975)], the court enumerated several factors from which the intent to distribute may be inferred. Those factors include evidence:
(1) that the defendant ever distributed or attempted to distribute any [of the drug];
(2) that the [drug] was in a form usually associated with [drug] possessed for distribution to others;
(3) that the amount was such as to create a presumption of intent to distribute;
(4) of expert or other testimony that such an amount as found on the defendant is inconsistent .with personal use only; and
(5) of any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

State v. Segura, 546 So.2d 1347, 1350 (La. App. 3 Cir.1989); see also State v. Hearold, 603 So.2d 731 (La.1992)(footnote omitted).

Intent, like any other fact may be proved by circumstantial evidence. La. R.S. 15:445. This is evidence of one fact, or a set of facts, from which the existence of the fact to be determined may reasonably be' | ¿¡inferred. McCormick, Law of Evidence, p. 435 (2d ed. 1972); Prosser, Law of Torts, p. 212 (4th ed. 1971). In criminal cases, the rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438.
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a con-elusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion. Prosser, supra, at 212.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may bq drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

State v. Chism, 436 So.2d 464, 468-69 (La.1983).

Defendant argues that the State notified the defense that it did not intend to use other crimes evidence, so the evidence of Defendant’s prior convictions for drug distribution should be considered impeachment evidence. Defendant points out that there is no evidence that the ten or eleven rocks were individually packaged and that altogether they only weighed 0.82 grams. The testimony shows this amount was consistent with distribution, but fails to show that it was inconsistent with personal use. Additionally, Defendant points out that none of the evidence presented at trial ^indicates that any paraphernalia associated with drug sales was found on Defendant at the time of his arrest.

We will now apply the five factors as were listed in Segura, 546 So.2d 1347 to the instant case. First, Defendant is correct that the State did not introduce other crimes evidence as part of its case, but rather introduced Defendant’s convictions under La.Code Evid. art. 609.1, which provides for the use of prior convictions to impeach a witness’s testimony. Therefore, Defendant’s prior convictions for distribution should not be used as La.Code Evid. art. 404(B) evidence to demonstrate Defendant’s intent to distribute the cocaine.

Second, the prosecution submitted no evidence that the cocaine was packaged in a manner consistent with distribution. Third, because the cocaine weighed 0.82 grams (less than ⅛ of an ounce), it does not create a presumption of Defendant’s intent to distribute. See State v. Decuir, 599 So.2d 358, 364 (La.App. 3 Cir.), writ denied, 605 So.2d 1095 (La.1992)(2.79 grams, or about one-tenth of an ounce, is insufficient to create the presumption); State v. McIntyre, 544 So.2d 86, 89 (La.App. 3 Cir.1989)(7.75 grams, slightly more than one-fourth of an ounce, is also insufficient to create the presumption).

Fourth, the State presented evidence, via Mr. Reich’s testimony, that the amount of the cocaine as well as Defendant’s behavior was consistent with the sale of drugs:

Q. Now, in your experience have you dealt with both people who are selling rocks as well as those who are strictly users?
IiqA. Yes.
Q. This amount would be consistent with which type of person?
A. Selling.
Q. And the activity that you saw [Defendant sitting in the passenger side seat of a ear stopped in the middle of the street] was that consistent with someone — that Mr. Durgan was doing, consistent with someone buying or selling?
A. Yes, for selling, sir.
Q. In a typical situation, do you see cars being flagged down quite a bit in crack sales?
A. Yes, sir.
Q. And typically who is the person who is buying the cocaine?
A. Normally, the person in the vehicle, sir.
Q. And the person selling would be which one?
A. The one on foot, sir.

In this exchange, Mr. Reich only implied that the 0.82 grams of crack cocaine was inconsistent with the amount that would be found on a user; he did not state, “this amount of cocaine is inconsistent with personal consumption even for a heavy user.” In this passage, Mr. Reich also only implied that Defendant’s behavior was inconsistent with the actions of someone purchasing crack cocaine or innocent activity; he did not say, “a person who sits in the passenger side of someone’s car parked in the middle of the road is never the purchaser of drugs and never sits there for innocent reasons.” Therefore, the State’s evidence that would fit within the fourth factor for determining intent to distribute was only submitted through implication.

Finally, Defendant is also correct in asserting that the State failed to introduce any evidence showing that Defendant possessed distribution paraphernalia either on his person or in his home at or around the time of his arrest.

InBecause the State only used circumstantial evidence to prove Defendant’s intent to distribute, it must have excluded every other reasonable hypothesis. The evidence from which the prosecution seeks to prove Defendant’s intent is as follows: Mr. Reich seeing Defendant sitting in a car parked in the middle of the road, the car speeding off, and Defendant’s possession of 0.82 grams of crack cocaine in the form of ten or eleven rocks. The implied and stated evidence shows that Mr. Reich, based on his one-year experience as a patrol officer, felt that someone sitting in the passenger seat of a car stopped in the middle of the road with the door open normally indicated a narcotics deal, the person who sat in the passenger seat was normally selling the narcotics, and the amount of CDS possessed by Defendant was consistent with distribution. Mr. Reich’s opinion that the amount of cocaine was inconsistent with a user and that the activity was inconsistent with someone buying crack is only an inference from the questions asked and answers given.

In State v. Fisher, 628 So.2d 1136 (La.App. 1 Cir.1993), writs denied, 94-226, 94-321 (La.5/20/94), 637 So.2d 474, 476, the first circuit found that the State failed to eliminate the reasonable hypothesis that the drugs found on Fisher were for personal consumption. Fisher had rented a motel room; and without stopping on the way to his room, he knocked on another door. The occupant of the other room exited, walked to Fisher’s room, and entered while holding something down by his side. The other man exited Fisher’s room and returned to his room. The motel manager called the police, and the police watched Fisher’s room for approximately two hours, during which no activity occurred, before securing a warrant.

The police, acting on the warrant, entered Fischer’s room where he was sleeping on the bed. After they woke him, Fisher quickly removed a bag containing about twenty rocks of cocaine from beneath his pillow, stuffed the bag into his mouth, |1⅞and swallowed. During the ensuing search, the police found approximately $688.00 on Fisher’s person. Worried that Fisher had swallowed a lethal amount of cocaine, the police had his stomach pumped, and analysis of his stomach contents showed that they contained cocaine. Further testimony at Fisher’s trial revealed the following:

One of the officers testified that the street value for crack cocaine at that time was about twenty dollars per rock. Another officer testified that he had never seen anyone purchase twenty rocks for personal consumption. He stated that the most he had ever seen purchased for personal consumption was five rocks. He claimed that when a person purchases twenty rocks of cocaine, the intent is to redistribute the cocaine. This same officer however, admitted that if money is not a problem, a heavy cocaine user could use two or three rocks each hour.

Id. at 1139.

In finding that the State failed to meet its burden of proof, the first circuit found that the evidence did not actually show Fisher attempted distribution. The first circuit held that the visit by the other room’s occupant was equally consistent with distribution to Fisher, distribution by Fisher, or unrelated innocent activity. The Fisher court noted that Fisher’s cocaine was packaged in a single plastic bag smaller that the palm of his hand and that there was no evidence showing that this was standard packaging for distribution of the individual rocks. The first circuit explained that the officer who testified that a person who purchased twenty rocks of cocaine had the intent to redistribute them had not been qualified as an expert; he was testifying based on his one-year and three-months experience in undercover narcotics. Moreover, the officer had admitted a heavy user could consume two to three rocks in an hour. The Fisher court also pointed out that the prosecution presented no evidence concerning drug paraphernalia. The first circuit factored into its reasoning that no weapons were found on Fisher and that, even though Fisher had $688.00, there was no evidence Fisher had actually obtained the money by distribution. The first circuit 113also noted that, even though it was possible, the State failed to determine from Fisher’s stomach contents how much cocaine the bag had contained.

Conversely, in State v. Daniels, 614 So.2d 97 (La.App. 2 Cir.), writ denied, 619 So.2d 573 (La.1993), the second circuit found intent to distribute based on expert testimony that the cocaine was packaged in a manner commonly used by drug dealers and that the amount, thirty-five rocks, of crack seized was inconsistent with personal use even for a heavy user. Both Fisher and Daniels deal with relatively small amounts of crack cocaine contained in a single package, and the distinction between them seems to hinge on the presence of expert testimony regarding the factors for determining intent to distribute.

In applying Fisher, 628 So.2d 1136, to the instant case, Mr. Reich’s opinions would be discounted because his one-year experience was even less than the officer’s in Fisher and because he was not offering expert testimony as the prosecution did in Daniels. If one discounts Mr. Reich’s opinion as was done by the Fisher court, the evidence does not exclude all reasonable hypotheses because the prosecution failed to rule out the possibility that Defendant was purchasing the drugs from the sedan’s driver, that Defendant was in the car for innocent reasons, that the vehicle sped away for unrelated incriminating reasons, that Defendant was an average cocaine user with an abnormal amount of crack on his person, and that Defendant was a heavy cocaine user with a proportionate amount of crack on his person.

Furthermore, the only evidence applicable to determining Defendant’s intent to distribute under the factors discussed in Segura is an opinion that had to be inferred from the record and that inferred opinion only addresses one of those factors. Segura, 546 So.2d at 1349. Therefore, this court may find that the State failed to prove Defendant’s intent to distribute under the appropriate analysis. In which case, this court should enter a guilty verdict of the lesser, included, and responsive offense of possession of a controlled dangerous substance, in violation of La. R.S. 40:967(C). La.Code Crim.P. art. 814(A)(49); La.Code Crim.P. art. 821(E); see State v. Clark, 04-901 (La.App. 3 Cir. 12/8/04), 889 So.2d 471, (reversed a conviction for forcible rape and entered a finding of guilt for simple rape); Fisher, 628 So.2d 1136 (reversed a conviction for possession with intent to distribute and entered a finding of guilty of possession).

CONCLUSION

This court will reverse the Defendant’s conviction for possession of a controlled dangerous substance with intent to distribute and enter a judgment of guilty to possession of a controlled dangerous substance, in violation of La.R.S. 40:967(C). Because the sentencing range for possession of a controlled dangerous substance, cocaine, is substantially less than that required for a conviction of possession of a controlled dangerous substance, cocaine, with intent to distribute, this court remands Defendant’s case to the trial court for re-sentencing. La.R.S. 40:967(C)(2); La.R.S. 40:967(B)(4)(b).

CONVICTION REVERSED AND MODIFIED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . Although the record does not show that a hearing was held on Defendant's application for post-conviction relief, Defendant requested service upon the State. The State had several months between the date the application was filed and the date the trial court granted relief to file an objection. The record contains no such objection. Thus, the lack of hearing caused no prejudice to the State.

      . For discussions about the difference between evidence submitted under La.Code Evid. art. 609.1 and evidence submitted under La.Code Evid. art. 404(B), see State v. Morehead, 38,124 (La.App. 2 Cir. 4/2/04), 870 So.2d 428, writ denied, 04-1283 (La. 10/15/04), 883 So.2d 1043; State v. Reeder, 95-2407 (La.App. 4 Cir. 7/16/97), 698 So.2d 56; State v. Clark, 95-1354 (La.App. 3 Cir. 12/11/96), 687 So.2d 470, writ denied, 97-715 (La.6/13/97), 695 So.2d 986; State v. Powell, 28,788 (La.App. 2 Cir. 11/1/96), 683 So.2d 1281, writ denied, 97-92 (La.5/30/97), 694 So.2d 243.

      . There are many other cases where a defendant was found guilty of distribution, but most of those cases involve large amounts of CDS, someone actually seeing that defendant distribute the CDS, individually packaged CDS, or an officer arranging to meet the defendant for the purpose of buying a CDS from that defendant.


text:
    Stewart HEAD, et al. v. CONTINENTAL CASUALTY COMPANY, et al.
    No. CA 06-236.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    John Fayne Wilkes, III, Lisa Eve Mayer, Borne, Wilkes, Lafayette, LA, for In-tervenors/Appellants, Risk Management, Inc.
    Joel Edward Gooch, Alen & Gooch, Lafayette, LA, for Defendants/Appellees, Continental Casualty Company, Kyle Sherman, Charles Brandt.
    William Stafford Neblett, Neblett, Beard & Asenault, Aexandria, LA, for Plaintiffs/Appellees, Stewart Head, Stacy Head.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| íThis case involves a legal malpractice suit filed by Stewart and Stacy Head against Kyle Sherman and Charles Brandt, d/b/a the Law Offices of Charles Brandt, and Continental Casualty Company. The suit arose from a failure to timely file another suit concerning an automobile accident Stewart Head was involved in. In this appeal, Risk Management, Inc. appeals the judgment of the trial court granting an exception of no cause of action in favor of the Heads, the prior attorneys, and Continental, thereby dismissing Risk Management’s intervention in the suit between the other parties. For the following reasons, we affirm the decision of the trial court.

On July 24, 2002, Stewart Head was driving a vehicle owned by the City of Abbeville, in the course and scope of his employment, when his vehicle was struck by Luby Landry. Mr. Head suffered injuries to his back, requiring surgery. Mr. Head was paid medical and indemnity benefits by Risk Management, the City of Abbeville’s workers’ compensation insurer. The Heads chose Mr. Sherman as their attorney and filed suit against Mr. Landry. Risk Management intervened in the suit against Mr. Landry to recover $132,299.00 in medical and compensation benefits paid to Mr. Head resulting from the accident. However, the suit against Mr. Landry was not filed timely and was dismissed on an exception of prescription.

The Heads then filed this suit against Mr. Sherman, his law firm, and their malpractice insurer, for the failure to timely file the previous suit. Risk Management again intervened, claiming that it was unable to recover its subrogation claim against Mr. Landry because of the actions of Mr. Sherman, and seeking to recover those amounts in the current malpractice claim. Both Mr. Sherman and the Heads filed exceptions of no cause of action, which were granted by the trial court, dismissing Risk Management’s claims. From that decision, Risk Management appeals.

12Risk Management asserts as its lone assignment of error that the trial court erred in granting the exception of no cause of action. We disagree.

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru, Inc., 616 So.2d 1234, 1238 (La.1993). No evidence may be introduced to support or controvert an exception of no cause of action. La.Code Civ.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803; Everything on Wheels Subaru, 616 So.2d 1234. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127.

Louisiana Code of Civil Procedure Article 1091 states that:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

Louisiana Revised Statutes 23:1101 states, in pertinent part (emphasis added):

B. Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit in district court against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents. ...
C. For purposes of this Section, “third person” shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay | abenefits under this Chapter because the injury by the third party has aggravated the employment related injury.

It is clear from a reading of the above statute that Risk Management does not have a cause of action against Mr. Sherman and Continental. Simply put, the alleged legal negligence committed by Mr. Sherman did not cause an injury to Mr. Head that obligated Risk Management to pay any benefits, nor did it aggravate the physical injury which created the obligation. The injury that obligated Risk Management to pay Mr. Head was separate from the alleged malpractice and was caused by Mr. Landry alone. Therefore, Mr. Sherman and his firm are not “third persons” that can be sued by Risk Management under La. R.S. 23:1101, and Risk Management is not legally entitled to the relief sought .

The decision of the trial court is hereby affirmed. Costs of this appeal are assessed against Risk Management.

AFFIRMED.

      . Risk Management had the right to file suit against Mr. Landry because he caused an injury to Mr. Head that obligated it to pay Mr. Head benefits. However, it chose not to exercise that right and file suit against Mr. Landry independently, but rather, it chose to intervene in the Heads’ suit, which was prescribed.


author: GENOVESE, Judge.

text:
    Trent DAVIS v. ENSCO OFFSHORE COMPANY.
    No. 06-197.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Guy O. Mitchell, Mitchell Law Offices, Ville Platte, Louisiana, for Plaintiff/Appellant: Trent Davis.
    Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, Lafayette, Louisiana, for Defendant/Appellee: ENSCO Offshore Company.

      Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Iiln this Jones Act and general maritime case brought in state court, Plaintiff, Trent Davis (Davis), appeals the jury verdict in favor of the Defendant, ENSCO Offshore Company (ENSCO), wherein the jury found that Plaintiff had not sustained an accident.

At the conclusion of the trial, the trial court dismissed Davis’ unseaworthiness claim by granting ENSCO’s motion for involuntary dismissal. Davis appeals the jury’s finding that he did not sustain an accident, as he has alleged, while working aboard ENSCO’s offshore drilling vessel. For the following reasons, we find no manifest error and affirm the jury’s verdict.

FACTUAL AND PROCEDURAL HISTORY

Davis was employed by ENSCO as a roustabout aboard an offshore jack-up drilling rig, ENSCO Rig 95 (Rig 95), operating in the Gulf of Mexico. Davis asserts that on December 19, 2003, after completing a painting job atop a storage shed, he fell 8 to 10 feet while descending a ladder, injuring his left knee and lower back. On July 28, 2004, Davis filed suit against EN-SCO under the Jones Act and general maritime law contending that ENSCO violated certain safety policies.

A jury trial was held from June 20 through June 23, 2005. At the conclusion of the trial, Davis’ unseaworthiness claim was dismissed by the trial court pursuant to ENSCO’s motion for involuntary dismissal. The jury returned a verdict denying Davis’ claims against ENSCO, finding that Davis did not prove by a preponderance of the evidence that he had sustained an accident aboard Rig 95. The trial court adopted the jury’s verdict as its judgment. On July 18, 2005, the trial court denied | ^Davis’ motion for judgment notwithstanding the verdict and, in the alternative, motion for new trial. Davis appealed.

ASSIGNMENTS OF ERROR

In his two assignments of error, Davis asserts that the jury erred in (1) failing to accept as true the uncontradicted testimony of his witnesses; and (2) failing to find that an accident occurred on Rig 95.

LAW AND DISCUSSION

In Coutee v. Global Marne Drilling Co., 05-756, pp. 5-6 (La.2/22/06), 924 So.2d 112, 116, the supreme court stated:

Louisiana courts of appeal apply the manifest error standard of review in general maritime and Jones Act cases. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 96. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through DOTD, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart, supra; Rosell, supra. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

After a thorough review of the record, though there are two permissible views of the evidence, we cannot say that the jury was manifestly erroneous or clearly wrong in finding that Davis did not sustain an accident on Rig 95. Davis contends that the jury erred by failing to accept his testimony as true, considering the fact that ENSCO did not present contradictory evidence. We disagree. We find that the |srecord is replete with not only Davis’ inconsistencies, but also ample contradictory testimony presented by ENSCO to support the jury’s verdict.

In his testimony, Davis stated that he began his work shift on December 19, 2003, with a safety meeting around 6:00 p.m. Davis testified that, at the time of the accident, Rig 95 was anchored “in place” and not being towed. He testified that the accident occurred approximately 2 hours after he started his shift and that “it was still kind of daylight and it was starting to get dark.” Davis stated that when the accident occurred, he and co-worker Regis Powers (Powers) were painting the deck, and Powers had placed a ladder against a metal shed in order to paint its roof. The metal shed covered stairs leading down to the tank room. Davis testified that Powers started painting the roof of the metal shed, but did not finish. According to Davis, he climbed the ladder to the roof of the metal shed; he was assisted by Powers at least once to put more paint onto his roller; and, he was finished painting the shed’s roof. Davis described the accident stating “I put my foot on the second rung and that’s when the ladder slipped from underneath me and I fell.” Davis described the way he fell as:

I was kind of falling backwards but I caught myself and, uh, I landed on — like on my feet but it was on the front, like the boots, kind of, the shoes, like almost on my tippy-toes, so-call it. But I fell like in a squatted position and my left knee had hit the deck and then my hand. And then some kind of way I twist myself and I fell backwards.

Davis testified that he did have the paint roller in his hand when he fell. According to Davis, his accident occurred on December 19, 2003 and ENSCO officials waited 2 days before transporting him onshore to have him evaluated by a doctor.

ENSCO introduced a “Certification of No Injury” into evidence dated December 19, 2003. Davis’ signature appears on said document certifying that he did |4not have “any injury of any kind during this tour of duty.” ENSCO submitted an “Employee Injury or Illness Report” dated December 21, 2003, containing Davis’ signature and description of how the accident occurred. Davis reported:

While standing on the port side cover with nothing to tie off to working, painting the top. I was coming down the latter [sic] as soon as I put my foot on the latter [sic] 2 rung. The latter [sic] slide from the bottom and I feel [sic] forward hitting my left nee [sic].

On said report, the date of the injury is listed as 12:20 a.m., Sunday, December 21, 2003. ENSCO also submitted the Acadian Ambulance medical report, prepared by its medic aboard Rig 95, corroborating that Davis reportedly fell around 12:20 a.m. on December 21, 2003, and was transported off the rig around 9:30 a.m. A receipt from the Comfort Inn in Lafayette, Louisiana indicates that Davis was checked-in to the hotel on December 21, 2003, and checked-out on December 22, 2003.

Dr. Gregory Gidman, an orthopedist, testified that he examined Davis at 9:55 a.m. on December 22, 2003. According to Dr. Gidman, Davis complained about his neck, left knee, and left hand. Dr. Gidman observed no scratches or abrasions to any of these areas, and an x-ray of Davis’ hand showed no injury. At no time did Davis mention pain in his back to Dr. Gidman.

Powers was also a roustabout for EN-SCO at the time of the accident. On the date of the trial, Powers was employed by ENSCO as a roughneck. Powers testified that on the night of Davis’ alleged accident, Rig 95 was “on a tow and a tow line had broke and we was going to replace it.” Powers testified that a little after midnight he heard the sound of a ladder hitting the ground and then Davis hollering. Immediately before that he had been helping coworker Kevin Callery (Callery) with a paint gun for a couple of minutes only 50 feet from Davis. Prior to that, Powers was at the front of the rig for about 30 minutes helping to change its tow line. Contrary to Davis’ | stestimony, Powers denied having propped the ladder against the metal shed and having climbed the ladder to paint. Powers testified that Davis was complaining that he injured his right knee and that he did not see any paint splattered around the scene of the accident. Powers testified that he observed Davis talking on the telephone a lot during his off hours and that Davis mentioned to him that “he wasn’t going to be out there much longer,” but Davis did not elaborate if he was being transferred or if he was planning to quit.

Callery was also employed by ENSCO as a roustabout on the date of the alleged accident; however, on the date of the trial, Callery no longer worked for ENSCO. In his testimony, Callery recalled that when Davis’ accident occurred “it was midnight, it was dark.” Callery testified that Davis reported to him immediately after he fell, that he only fell about 2 or 3 feet, that he slipped off of the ladder rather than the ladder slipping out from underneath him, and that he injured his right knee. Call-ery testified that he did not see any paint splattered around the accident scene.

T.K. Thornton, Jr. (Thornton) was an offshore paramedic for Acadian Ambulance aboard Rig 95 on the date of the alleged accident. Thornton testified via deposition that he arrived to examine Davis and administer medical care to him immediately after the alleged accident. According to Thornton, he found Davis lying face down on the deck, and Davis immediately complained that he hurt his right knee. Thornton testified that when he examined Davis he “did not find any deformities, contusions, abrasions, punctures, tenderness, lacerations, or swelling.” Thornton saw no apparent injury to either Davis’ right or left knee. According to Thornton, Davis told him that he had fallen 8 to 10 feet straight down, face down, and that his knees bore the brunt of his fall onto the metal deck. After escorting Davis to the crew bunk Lroom, Davis told Thornton that his pain was in his left knee. Thornton testified that he observed no signs of injury to Davis’ left knee.

James Higdon, ENSCO’s toolpusher on the date of the alleged accident, investigated the accident scene and assisted with Davis’ completion of the “Employee Injury or Illness Report.” According to said report, Davis asserted that he started to descend the ladder with the roller brush in his hand, and when he stepped onto the second ladder rung from the top, the ladder skidded out from underneath him causing him to fall 8 to 10 feet onto the metal deck of the rig.

Brad Bruce, ENSCO’s deck foreman on the date of the alleged accident, testified that, immediately after the alleged accident, he observed that Davis’ hard hat was laying beside him, that there was no paint splatter near the accident scene, and that there were no marks or evidence on the wall or near the wall to indicate that the ladder slid and fell as described.

Contrary to Davis’ assertions, we find that there are clear contradictions in the record to support the jury’s finding that Davis was not credible. Davis’ recollection of when the accident occurred was not supported by the testimony or the documents in evidence. Davis initially stated that his right knee was injured. Shortly thereafter, Davis changed his claim and stated that he injured his left knee. Davis’ description(s) of how he fell are not consistent. On the date of the accident, he reported that he fell forward onto his knees. On the date of trial, he testified that he landed in a squatted position and landed on his “tippy-toes” injuring his left knee, and then twisted in a manner that caused him to fall backwards and also injure his back.

The evidence in the record supports the jury’s verdict that there was no accident. Considering the insufficiency of proof, and the inconsistent and 17contradictory testimony presented by Davis, we find that a reasonable factual basis exists for the jury’s finding that there was no accident. We further recognize that the trier of fact is in the best position to assess the demeanor and judge the credibility of witnesses when there is conflicting testimony. Robin v. Allstate Ins. Co., 03-1009, 03-926 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, writ denied, 04-1383 (La.9/24/04), 882 So.2d 1143 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). Therefore, we do not find that the jury was manifestly erroneous or clearly wrong in its finding that Davis failed to meet his requisite burden of proof that an accident had occurred aboard ENSCO’s offshore drilling vessel. Accordingly, we affirm the jury’s verdict.

DECREE

For the foregoing reasons, the judgment is affirmed. All costs of this appeal are assessed to Plaintiff/Appellant, Trent Davis.

AFFIRMED.

      . The trial court's dismissal of Davis' unseaworthiness claim has not been appealed and will not be addressed.


author: GREMILLION, Judge.

text:
    Veronica Ray WHITTINGTON v. Patrick SAVOY, M.D.
    No. 2005-1169.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Rehearing Denied July 12, 2006.

      Eugene A. Ledet, Jr., Rivers, Beck, Dal-rymple & Ledet, Alexandria, LA, for Plaintiff/Appellant, Veronica Ray Whit-tington.
    James R. Shelton, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, Patrick Savoy, M.D.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hThe plaintiff, Veronica Ray Whitting-ton, appeals the trial court’s judgment finding that she failed to satisfy her burden of proving that the defendant, Dr. Patrick Savoy, committed medical malpractice. For the following reasons, we affirm.

FACTS

Whittington, the mother of two children, underwent cesarian sections both times instead of normal parturition. These procedures resulted in a vertical scar from her umbilicus, or navel, down towards the pubis bone. In addition to the cesarian sections, she underwent a hysterectomy, which utilized the scar as a portal for the procedure. After a time, Whittington described her lower abdomen as resembling a “butt,” because her stomach was divided into halves via the resulting crevice caused by her scar.

Whittington approached Dr. Savoy, a general surgeon, who had performed an appendectomy on her son, about correcting her scar. In examining her, he discovered an incisional hernia in her lower abdomen and recommended surgery to correct the problem. In addition to the hernia repair, he agreed to perform an abdominoplasty to correct the scar and the appearance of her abdomen. These procedures were performed on January 19, 1998. Following surgery, Whittington claimed that her incision extended from her pubis to her breast bone. She developed several sero-mas and a painful protrusion above her umbilicus, which Dr. Savoy thought might require a later surgery or liposuction to correct. She continued follow-up treatment with him until March 19, 1998, when he released her to return to work. | ¡.Unhappy with the resulting scar and protrusion, Whittington sought treatment from Dr. Phillip Lindsay, a general surgeon, in Alexandria, Louisiana. On June 15, 1998, she underwent surgery to reduce the bulge and the scar.

Whittington filed a medical malpractice claim against Dr. Savoy based on the unsightly and lengthy scar left from his surgery. The matter was reviewed by a medical review panel, which found no breach of the standard of care attributable to a general surgeon in performing a hernia repair and an abdominoplasty. It further found that the length of the scar was immaterial to Whittington’s complaint.

Whittington filed the instant suit against Dr. Savoy seeking damages as a result of his medical malpractice. She later added his malpractice insurer, St. Paul Fire and Marine Insurance Company. The matter proceeded to a bench trial after Whitting-ton stipulated that her damages did not exceed $50,000. Following the close of evidence, the trial court took the matter under advisement. It then issued written reasons finding that Whittington failed to satisfy her burden of proving that Dr. Savoy breached the applicable standard of care. Thereafter, judgment was rendered dismissing her claims against him. This appeal by Whittington followed.

ISSUES

Whittington raises three assignments of error on appeal. She claims that the trial court erred in allowing the medical review panel’s opinion into evidence, in finding that Dr. Lindsay was unsure about the length of his incision, and in finding that she failed to carry her burden of proving Dr. Savoy’s malpractice.

| .EVIDENCE

In her first assignment of error, Whittington argues that the trial court erred in allowing the medical review panel’s opinion into evidence. We agree. Louisiana Revised Statute 40:1299.47(H) provides that “[a]ny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law.” However, that provision presupposes the validity of the opinion itself. In this case, the opinion rendered by the medical review panel did not meet the requirements of La.R.S. 40:1299.47(G)(3).

Louisiana Revised Statutes 40:1299.47(G) provides that the “sole duty” of the medical review panel is “to express its expert' opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care.” In performing that duty, the medical review panel is not to render an opinion on the merits if “there is a material issue of fact, not requiring ex-pert opinion, bearing on liability for consideration by the court.” La.R.S. 40:1299.47(G)(3) (emphasis added).

In this case, the medical review panel’s opinion seems to consider Ms. Whitting-ton’s complaint as relating to the complications associated with Dr. Savoy’s surgery and disposes of the issue of the length of the scar as being immaterial. With regard to the ultimate conclusion, the panel’s opinion states that “[w]e find the complications that occurred are certainly expected complications that can occur and |4are listed appropriately in the consent to the surgery. We also find the length of the incision is not truly material to the complaint herein and should be of least concern.”

Had the complications arising from Dr. Savoy’s surgery been the issue, the opinion would clearly have been admissible. However, the litigation is over the length of the scar, not the complications. Dr. Carrollj who was a member of the medical review panel, testified that, with regard to the length of the scar, the panel simply accepted Dr. Savoy’s position to the effect that he extended the incision only “slightly towards the xiphoid process.” This was a material issue of fact bearing on the doctor’s liability which did not require an expert opinion for its determination. See La.R.S. 40:1299.47(G)(3). In fact, Dr. Carroll was of the opinion that, had Dr. Savoy extended the incision as asserted by Ms. Whittington, that action would have been a deviation from the accepted standard of care expected of the doctor. Thus, ■ by reaching this factual conclusion, the medical review panel reached an opinion that exceeded its statutory authority. We find the trial court erred in admitting that opinion.

MEDICAL MALPRACTICE

In her second and third -assignments of error, Whittington argues that the trial court erred in finding Dr. Lindsay unsure of the length of the incision made by him and in finding that she failed to satisfy her burden of proof with regard to Dr. Savoy’s malpractice.

The plaintiff bears the burden of proving that a doctor committed malpractice. Dr. Savoy practices in the specialty of general surgery. Accordingly, pursuant to La.R.S. 9:2794(A), Whittington must prove (1) the degree of care |sordinarily practiced by a general surgeon; (2) that Dr. Savoy either lacked this degree of knowledge or skill or failed to use reasonable care and diligence along with his best judgment in applying that skill; and (3) that as a proximate cause of his lack of knowledge or skill or the failure to exercise this degree of care, she suffered an injury she would not have otherwise incurred. See Brown v. Stickley, 04-439 (La.App. 3 Cir. 9/29/04), 886 So.2d 515, writ denied, 05-0101 (La.3/18/05), 896 So.2d 1011.

A trial court’s findings on the issue of medical malpractice are factual in nature; thus, they are reviewed under the manifest error — clearly wrong standard of review. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one.” Id. at 882.

After reviewing the record in its entirety, we find the trial court’s conclusion that Whittington failed to satisfy her burden of proof, reasonable. A review of the record reveals that it was presented with differing views of the evidence regarding the length of the incision made by Dr. Savoy. Thus, its decision to credit his view is not manifestly erroneous.

In reaching its conclusion, the trial court noted three factors which favored Dr. Savoy:

1) The operative notes made by Dr. Savoy at the time of surgery are entitled to much weight as at the time there was no indication of litigation.
2) The testimony of Dr. Lindsay indicated that he was not at all sure how long the incision that he made was at the time of surgery.
| ñ3) The photographs taken after the second surgery do not prove which surgery resulted in the long scar. These should have been taken between the first and second surgery.

After reviewing the record, we find all three of these conclusions reasonable. The decision to place greater weight on Dr. Savoy’s post-operative notes was within the trial court’s discretion as the factfin-der. The same holds true with regard to the photographs of Whittington’s abdomen taken after Dr. Lindsay performed surgery. The trial court’s conclusion that they offered no help in determining the length of Dr. Savoy’s incision, is very reasonable. As the trial court stated, had the photographs been taken between the surgeries, they would have offered incontrovertible proof as to the length of the incision made by him.

Dr. Lindsay

In the second factor, the trial court found that Dr. Lindsay was unsure of the length of his incision on Whittington. In his deposition, Dr. Lindsay did not know the length of Whittington’s prior scar, but said that he thought it extended from her umbilicus up to near the xiphoid process. He denied extending the existing scar towards the xiphoid process. Although he admitted that he was responsible for a scar, he described it as being a scar within a scar.

When questioned about the surgery he performed, Dr. Lindsay could not specifically recall whether he extended Whitting-ton’s scar:

A I don’t believe I did. I would have to look at my report. I think if it was it was not too much, maybe a little bit. Let’s see. Well my description was, you know, upper midline scar, large bulge, I don’t remember extending it, but it’s possible, but it wouldn’t have been- — I don’t think it would have been a lot, a centimeter or two maybe.
Q In what direction?
17A Probably toward the xiphoid to smooth it out superiorly, toward her head, and that would have been really probably the only reason is just to get it to lay down better, but I donV-you know, it was already pretty much up there.

He was also questioned pertaining to Dr. Savoy’s description of the incision he made, contained in his post-operative report:

Q You would agree that his operative report, which you just read, doesn’t make reference to the fact ...
A Well, it doesn’t say really how long. Q ... that an incision was made from the umbilicus to the xiphoid process, correct?
A It says the umbilicus was, you know, detached. I don’t think it says one way or the other if I read it correctly. Let’s see, it talks about lateral dissection, okay, the incision was opened up slightly toward the xiphoid process. It was— indeed it may not have gone all the way to the xiphoid and that’s probably correct, but it certainly was most of the upper midline. I’m not sure that I took it up as far as the xiphoid either. You try to avoid that if you can. The xiphoid gets a little tender.

Based on the foregoing testimony, the trial court’s finding that Dr. Lindsay did not know the length of his incision, was reasonable. In one instance, he was adamant that he did not extend her scar; however, in the next instance, he was unsure and said that he may have extended it. As these answers conflict, we find no error in the trial court’s conclusion.

Standard of Care

On the issue of whether Whitting-ton satisfied her burden of proof, the trial court heard testimony from both Drs. Savoy and Lindsay, as well as from Dr. Daniel Carroll, a general surgeon, who served as a member of the medical review panel.

|8In performing surgery, all three doctors stated that a surgeon cannot always anticipate what a procedure will entail once he opens a patient up, as sometimes a more extensive procedure is required than first thought. This includes the length of the incision needed to perform the procedure. Dr. Lindsay testified that it is a judgment call for the surgeon as to how long an incision has to extend. Dr. Savoy explained that one instance in which a longer incision may be needed is when the surgeon needs to get sufficient tissue so that the skin will flatten out, rather than bulge, when sewn back up. Dr. Carroll agreed, stating that a surgeon may need to extend his initial incision when closing in order for the skin to lie flat once the incision is closed.

Based on the foregoing testimony, we find that the standard of care required of a surgeon is to make the incision long enough to perform the intended procedure and sufficiently long so that the skin lies flat after the incision is closed. Thus, the length of the incision is left to the surgeon’s best judgment.

Failure to Use Reasonable Care

Whittington testified that Dr. Savoy told her what he proposed to do to correct her abdomen, prior to surgery. She said that he was going to open her scar, removing both it and some fatty tissue, and that he might have to go on each side and underneath the scar in order to tuck in the tissue which drooped. She said that he also indicated that he might have to remove her navel.

Prior to surgery, Whittington stated that she did not have a scar above her umbilicus. Afterwards, she stated that her incision extended from her pubis to her breastbone, which shocked her as she had no idea that she would have a scar above |9her navel. Whittington testified that had she known the outcome, she would not have undergone the surgery, as she was able to hide her original scar with her underwear, but that she could not hide this scar.

Unhappy with Dr. Savoy, her scar, and the painful protuberance which developed, Whittington stated that she sought treatment from Dr. Lindsay. She stated that she underwent a second surgery on June 15, 1998, during which Dr. Lindsay removed scar tissue and the painful fatty tissue. Whittington testified that Dr. Lindsay did not extend her scar any, but instead made his incision in the scar. She said that this incision did not extend all the way to the top of Dr. Savoy’s incision. She said that she was satisfied with the outcome of this surgery, but was still self-conscious about her scar.

Whittington’s husband, Michael, testified that he was familiar with her body, as they had previously dated a couple of years prior to her surgery. He stated that they resumed dating a couple of months after she underwent surgery from Dr. Savoy, and that they married six months later. By the date of the trial, they had physically separated from each other. Michael testified that the scar from Dr. Savoy’s surgery extended from Whittington’s navel up approximately seven inches toward her sternum. He said that the scar from Dr. Lindsay’s surgery was located on the side of the existing scar and extended up approximately six inches toward her sternum.

Dr. Savoy testified that he evaluated Whittington for lower abdominal pain and a lower abdominal disfiguring scar. After detecting an incisional hernia, he recommended surgical repair. He stated that Whittington wanted to correct her scar and the appearance of her lower abdomen; thus, the hernia repair and | inabdominoplasty were scheduled. Dr. Savoy said that he informed Whittington that the abdominoplasty would require a lengthier incision and that he would have to remove her umbilicus and then replace it when closing the incision. In order to do so, he stated that he would have to make an incision above the umbilicus so that the skin would lie right after the incision was closed. He informed her that she could possibly lose her umbilicus as a result of this procedure, but said that she told him to do whatever it took to correct the appearance of her lower abdomen.

In his operative notes, Dr. Savoy first described the lower abdominal hernia repair, after which he began the abdomino-plasty. In doing so, he stated that “beginning at the umbilical incision, the umbilical incision was opened up slightly towards the xiphoid process.” Dr. Savoy testified that this indicated that his incision went approximately three to four inches above the umbilicus, but not all the way to the xiphoid process. Had he done so, he said that he would have documented it in his notes. He explained that in order to repair "Whittington’s scar, he had to go out a little beyond the scar itself, which included removing her umbilicus and extending his incision above it. However, he denied extending it eight inches up to the xiphoid process, as depicted in the photographs submitted by Whittington.

After the surgery, Dr. Savoy testified that Whittington developed several sero-mas and a painful protuberance above the umbilicus. He stated that both of these were common occurrences following this type of surgery. Although the consent form signed by Whittington did not specifically state that an incision would extend above the umbilicus, Dr. Savoy testified that he advised her of the need for such an incision and she consented to it.

InDr. Lindsay testified that he first examined Whittington on June 8, 1998, at which time she complained of pain in her upper abdominal wall, along with a protuberance in her upper midline from her prior surgery. He stated that he was unsure if Whittington had an upper abdominal hernia, so they decided to perform surgery to reduce this painful bulge and her scar. Dr. Lindsay stated that he did not know the exact length of Whittington’s scar prior to his surgery; however, he said that it extended from her umbilicus to the xiphoid process or at least a major portion of her upper midline.

Whittington underwent the second surgery on June 15, 1998. In performing the procedure, Dr. Lindsay could not remember whether he extended Whittington’s abdominal scar up toward the xiphoid process. His post-operative notes state that “[t]he upper midline was opened down to the fascia, the fascia was not violated. There was quite a bit of dense scarring in the midline, this was excised along with a lot of fatty tissue to remove the bulging scar.” If he did extend the incision above the umbilicus, Dr. Lindsay said that it was only a centimeter or two up toward the xiphoid process in order to get the skin to smooth out when he closed the incision. However, he later denied creating an additional scar above the umbilicus, as he described the scar he created as a scar within the already existing sear.

Dr. Lindsay stated that it was extremely unusual to make an eight inch incision above the umbilicus to repair an incisional hernia in the lower abdomen. However, he did not find that it was a deviation from the standard of care expected of a surgeon.

liaDr. Carroll testified that he was familial' with both procedures performed by Dr. Savoy. Based on Whittington’s original lower abdominal scar, her description of her abdomen prior to surgery, and his presumption as to her body habitus, it would be a deviation from the standard of care for a surgeon to make an incision from the umbilicus to the xiphoid process. He felt that an incision of three finger widths above the umbilicus would be sufficient to correct the appearance of the “butt cheeks” in Whittington’s lower abdomen.

Dr. Carroll opined that Dr. Savoy did not commit malpractice in performing the two procedures. He based his opinion on Dr. Savoy’s post-operative notes, which were dictated and transcribed on the date of the surgery. Those notes stated that Dr. Savoy extended his initial incision, which was below the umbilicus, slightly up toward the xiphoid process. Dr. Carroll interpreted “slightly” to mean much less than half of the way between the umbilicus and the xiphoid process. He further relied on a drawing by Dr. Lindsay, which depicted Whittington’s abdomen and scar at the time he examined her. He felt that the drawing did not depict the scar extending to the xiphoid process.

Dr. Carroll stated that the medical review panel weighed this evidence against Whittington’s affidavit, which revealed a plaintiff who had a number of problems with what had occurred approximately two years after the initial surgery. He noted that the panel did not find the incision’s length a determining factor in whether Dr. Savoy performed the ventral hernia repair and abdominoplasty improperly.

| ToBased on the foregoing evidence, we find that the trial court was presented with two differing views of the evidence as to whether Dr. Savoy committed malpractice. Dr. Savoy testified that he extended his incision approximately four inches above the umbilicus, and the medical review panel found that he performed the hernia repair and the abdominoplasty properly. We further find that Dr. Lindsay’s testimony is ambivalent as to the length of the incision he made when performing the later surgery .on Whittington. This issue could have easily been proved by the introduction of a photograph taken after Dr. Savoy’s surgery, but prior to Dr. Lindsay’s surgery. Although trite but true, a picture is worth a thousand words. In this instance, one photograph would have proved Whittington’s claim. However, as she failed to submit such a photograph, we find no error in the trial court’s ruling that she failed to carry her burden based on the evidence in the record. Accordingly, these assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Veronica Ray Whittington.

AFFIRMED.