author: PARRO, J.

text:
    Kim McLIN and Curtis McLin v. Jeffrey BREAUX, M.D., Michael Leggio, M.D., and Louisiana Medical Mutual Insurance Company.
    No. 2005 CA 1911.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Writ Denied Jan. 26, 2007.

      Frank Tomeny, III, Tomeny & Fisher, Baton Rouge, for Plaintiffs-Appellees Kim and Curtis McLin.
    Janie Languirand Coles, Paul R. Mayer, Jr., Bafea, Godofsky, Penzato, Schroeder, & Ford, Baton Rouge, for Defendants-Appellants Jeffrey Breaux, M.D. and Louisiana Medical Mutual Ins. Co.
    Before: PARRO, GUIDRY, and McClendon, JJ.
   PARRO, J.

| gDr. Jeffrey Breaux and his medical malpractice insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), appeal a judgment granting the plaintiffs’ motion for judgment notwithstanding the verdict, in which the trial court modified a jury verdict that had found no negligence on the part of Dr. Breaux, and rendered a judgment apportioning fault evenly between him and Lane Memorial Hospital and awarding general and special damages. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 26, 2001, Dr. Breaux performed a surgical procedure on Kim McLin at Lane Memorial Hospital. Her initial post-operative condition was uneventful, but several days after her release from the hospital, she contacted Dr. Breaux with complaints of severe abdominal pain, constant nausea, and vomiting. An x-ray on July 81 revealed what appeared to be a laparotomy pad (lap pad) in her abdominal cavity. Dr. Breaux performed emergency surgery that day and removed a lap pad from McLin’s abdomen. After the pad was removed, she had a normal recovery.

At the McLins’ request, a medical review panel was convened. The physicians on the panel concluded that neither Dr. Breaux nor Dr. Michael Leggio, who had assisted during the initial surgery, breached the standard of care. McLin and her husband then filed suit against both doctors and their insurer, LAMMICO. Dr. Leggio was dismissed before trial, and the case proceeded to a jury trial against Dr. Breaux. The evidence included McLin’s medical records, the results of the medical review panel, expert testimony, and testimony from all of the medical personnel who had participated in the first surgical procedure. The key facts are basically undisputed. Before the surgery began, the hospital’s nursing staff who were assisting with the procedure set out and ^counted all the instruments and materials that would be used. The surgery proceeded without incident. At its completion, Dr. Breaux manually explored McLin’s abdominal cavity and removed lap pads and sponges he had used. He then visually examined the area and did not see any remaining materials. When he began to close the internal membranes or fascia surrounding the abdominal cavity, the nurses performed a surgical count of everything that had been used during the surgery. Upon completion of this count, they told Dr. Breaux that all materials were accounted for and were outside of McLin’s body. Another count was done while he performed the final closure of the skin, and the same result was reported to him. However, the hospital staff admittedly did not completely follow the hospital’s policy for performing the surgical counts, and the counts were obviously incorrect, as one of the lap pads was left in McLin’s body.

After considering this evidence, the jury found Dr. Breaux was not negligent. A judgment in accord with this verdict was signed December 23, 2004. The McLins then sought a judgment notwithstanding the verdict (JNOV), based on jurisprudence stating that a surgeon has a non-delegable duty to remove all sponges used during surgery from a patient’s body. The trial court agreed and granted the motion, apportioning fifty percent fault to Dr. Breaux and fifty percent to Lane Memorial Hospital. In a judgment signed April 5, 2005, Dr. Breaux and LAMMICO were ordered to pay damages of $28,685.86, plus legal interest, to McLin, and loss of consortium damages in the amount of $500, plus legal interest, to her husband. Dr. Breaux and LAMMICO appeal.

APPLICABLE LAW

Judgment Notwithstanding the Verdict — JNOV

Article 1811(F) of the Louisiana Code of Civil Procedure authorizes a trial court to grant a JNOV on either the issue of liability or damages or both. A JNOV should be granted only if the trial court, after considering the evidence in the light most favorable to the party opposed to the motion, finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict 14on that issue. Broussard v. Stack, 95-2508 (La.App. 1st Cir.9/27/96), 680 So.2d 771, 779-80. In cases where virtually no factual dispute exists and no credibility determinations by the fact finder are required, legal questions are within the province of the trial court to decide by entering a JNOV. See Junot v. Morgan, 01-0287 (La.App. 1st Cir.2/20/02), 818 So.2d 152,157-58.

Medical Malpractice

A plaintiff in a medical malpractice action has the burden of proving: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; if the defendant physician practices in a particular specialty, and the alleged acts of medical negligence raise issues peculiar to that particular medical specialty, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment, in the application of that skill; and (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred. LSA-R.S. 9:2794(A). Summarizing, the plaintiff must establish the standard of care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor’s alleged negligence and the plaintiffs injuries. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1233. Injury alone does not raise a presumption of the physician’s negligence. LSA-R.S. 9:2794(C).

To meet this burden of proof, the plaintiff generally is required to produce expert medical testimony. Lefort v. Vena-ble, 93-2345 (La.App. 1st Cir.6/28/96), 676 So.2d 218, 220. However, the jurisprudence has recognized exceptions in instances of obvious negligence, i.e., instances in which the medical and factual issues are such that a lay jury can perceive negligence as well as any expert can. Pfiffner, 643 So.2d at 1234. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a |sknife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence. Pfiffner, 643 So.2d at 1233-34; Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986). The prevailing case law in Louisiana holds that a surgeon has a non-delegable duty to remove all sponges placed in a patient’s body. See Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969), overruled on other grounds by Garlington v. Kingsley, 289 So.2d 88 (La.1974); Ghappetta v. Ciaravella, 311 So.2d 563 (La.App. 4th Cir.), writ denied, 313 So.2d 841 (La.1975); Guilbeau v. St. Paul Fire & Marine Ins. Co., 325 So.2d 395 (La.App. 3rd Cir.1975), writ denied, 329 So.2d 454 (La.1976); Johnston v. Southwest Louisiana Assoc., 96-1457 (La.App. 3rd Cir.4/2/97), 693 So.2d 1195; Romero v. Beilina, 01-0274 (La App. 5th Cir. 9/25/01), 798 So.2d 279, 281, writ denied, 01-2852 (La.1/11/02), 807 So.2d 237. See also Kelly v. Riverside Med. Ctr., 499 So.2d 1135, 1136 (La.App. 1st Cir.1986); Seals v. Gosey, 565 So.2d 1003, 1011 (La.App. 1st Cir.1990).

DISCUSSION

Dr. Breaux and LAMMICO contend the court erred in granting the motion for JNOV, because the case law stating a surgeon has a “non-delegable” duty to remove materials used during surgery from the patient’s body is a form of strict liability, which is not the current law and was legislatively overruled by the passage of LSA-R.S. 9:2794. This statute was first enacted in 1975 and, with reference to the burden of proof in a medical malpractice cause of action, has remained substantially the same since that date. The appellants correctly note that the Grant case cited above, in which the Louisiana Supreme Court first enunciated this independent duty that the surgeon could not delegate to nurses, predated this legislation. They argue that later decisions from other courts of appeal erroneously relied on Grant and are not binding on this court. They also contend that the way in which surgical procedures are performed does not allow a surgeon to independently ensure that every lap pad or sponge has been removed, and that in this case, it is clear from the evidence that the hospital staff violated procedure and was solely at fault in allowing the lap pad to remain in McLin’s body. Therefore, they urge this court to reinstate the jury verdict finding that Dr. Breaux was not negligent.

I fiThe Grant ease involved an inaccurate surgical count by the nurses, resulting in the failure to remove a gauze “sponge” from a patient’s body. During that surgery, the sponges were attached to a metal holder or clamp as they were inserted and removed. The court stated:

The surgeon performing the operation inserts the sponges and this is, of course, a medical treatment to absorb bleeding so that the operation may be performed and, when the surgery is over, it is the surgeon who must remove the sponges before closing the incision.

Grant, 223 So.2d at 153. Recognizing the majority rule on this issue in cases from other jurisdictions, the supreme court held that while the nurses “were unquestionably negligent in making an incorrect count of the sponges” withdrawn from the patient’s body, the surgeon was guilty of “concurrent fault” in failing to notice that one of the holders he withdrew did not have a sponge attached. Grant, 223 So.2d at 155.

While the Grant case did precede the enactment of LSA-R.S. 9:2794, and its facts are distinguishable from the matter at hand, there are many cases subsequent to Grant, and also cases subsequent to the enactment of the statute, including some from this court, imposing liability on surgeons under factual circumstances strikingly similar to the case we are reviewing. A sampling of those cases shows consistent reliance on the principle established in Grant.

The patient in the Chappetta case had a hysterectomy, during which a lap pad was left in her abdominal cavity. As required by established procedure, the nurses had made a count and written record of sponges and lap pads before the surgery. At the conclusion of the operation, the surgeon made a visual and manual inspection of the operative site and conferred with the nurses as to the count. Before final closing, a | ^second count, “which was later found to be erroneous, corresponded to the pre-operative count.” Chappetta, 311 So.2d at 565. Noting it was the surgeon who had the duty to remove the sponges before closing the incision, the fourth circuit court said:

[The surgeon] could not avoid this duty by the delegation of post-operative counting of the sponges to nurses and reliance thereon, or a mere showing that he made a visual and manual inspection of the operative site only.

Chappetta, 311 So.2d at 566.

In the third circuit’s Guilbeau case, surgery was performed on a patient with colon cancer. A sponge count made and recorded by the nurses after the surgery agreed exactly with the pre-surgery count, and the nurses conveyed this information to the surgeon before the incision was closed. However, after several months of serious post-surgery problems, an x-ray revealed the presence of a lap pad in the small bowel, and additional surgery was required to remove it. The court stated:

This appeal does not involve a factual dispute. It is admitted by defendant that error was committed when the pad was left in the plaintiffs abdominal cavity during the surgery. It is defendant’s contention, however, that [the surgeon] should not be blamed for the damages sustained by the plaintiff because he met the standard of professional care of the locality and exercised the degree of skill, care and judgment which is ordinarily exercised by similar practitioners in the area. Evidence to support this contention was presented in the form of testimony by experts which indicated that the general practice in the area was to rely on the “sponge count” of the nurses and a visual inspection of the area of surgery prior to closure to prevent the error committed in this case.

Guilbeau, 325 So.2d at 397. Citing the Grant case as “the latest expression of our Supreme Court on the subject,” the court found the operating surgeon negligent per se. Guilbeau, 325 So.2d at 398.

In the fifth circuit’s Romero case, before the final suturing of the laser incision, the nurses erroneously informed the surgeon that all lap pads and sponges were accounted for. However, a “lap sponge” was left in the patient’s abdomen. The surgeon testified that he relied on the nurses to keep track of sponges and lap pads used during surgical procedures; the medical review panel and experts who testified agreed that his conduct met the applicable standard of care. However, the court concluded that “the nurses’ count is a remedial measure that does not discharge the surgeon’s independent duty to insure that all sponges are removed before the incision |sis closed,” and affirmed the trial court’s conclusion that a surgeon’s duty to remove foreign objects placed in a patient’s body during surgery is an independent, non-delegable duty. Romero, 798 So.2d at 282.

In reaching this conclusion, the court cited an earlier case from the third circuit in which, due to an inaccurate count by the surgical nurses, surgical gauze was left in the patient following a hernia operation. The surgeon in that case explained that although the nurses do not insert or remove the sponges during surgery, it was their responsibility to count them and he had to rely on the accuracy of that count. Responding to this statement, the third circuit said:

[W]e disagree with [the surgeon’s] assertion that the nurses have the sole duty to account for all sponges and that the surgeon discharges his duty by reasonably relying on their sponge count. We think this argument contrary to common sense: after all, [the surgeon] had exclusive control over the sponge from the time he physically placed it inside his patient until he removed it. We think, as did the trial judge, that the nurses’ count is a remedial measure that cannot relieve the surgeon of his non-delegable duty to remove the sponge in the first instance.

Johnston, 693 So.2d at 1198. The court held that both the surgeon and the nurses had a duty to account for the sponges and were concurrently at fault in leaving a sponge in the patient’s body. Johnston, 693 So.2d at 1198.

In this court’s Seals decision, a small piece of gauze was removed from a gunshot wound in the patient’s hand several weeks after a surgical procedure. There was evidence that the gauze was a different material from any of the materials used during the surgery, and that the wound had re-opened and been treated several times by lay persons and by other medical practitioners during the weeks following the surgery. After a jury determined the surgeon was not negligent, the trial court granted a JNOY in favor of the patient, and the surgeon appealed. Concerning the legal issue, this court stated unequivocally that the failure to remove a surgical sponge is substandard conduct; therefore, if the surgeon had introduced the foreign material into the wound, it was a breach of the standard of care to leave it there. Seals, 565 So.2d at 1010 n. 3. However, based on the factual evidence in the case, this court reversed the JNOV, finding that a reasonable and fair-minded jury exercising impartial judgment may have reasonably concluded that the surgeon was not responsible for inserting the | particular foreign material that was later removed from the plaintiffs hand. Seals, 565 So.2d at 1011.

The Kelly case from this court also involved a lap sponge left in the patient’s abdomen at the conclusion of an operation. This court stated, “The record shows that the lap sponges were counted by the nurse, assisted by the chief surgeon .... The law is clear that when a lap sponge is left in a patient in the course of surgery, the chief surgeon and the hospital may be held liable.” Kelly, 499 So.2d at 1137. The court further stated that under these facts, there was “no serious question of liability” on the part of the hospital and the chief surgeon. Kelly, 499 So.2d at 1136.

In contrast to these cases is this court’s decision in Walston v. Lakeview Regional Med. Ctr., 99-1920 (La.App. 1st Cir.9/22/00), 768 So.2d 238, writ denied, 00-2936 (La.12/15/00), 777 So.2d 1229, in which a man brought a medical malpractice claim against the hospital and surgeons after his wife died following cardiac surgery. Emergency surgery had been performed on her to repair an aortic aneurism; immediately after the first surgery, a second surgery was required to halt internal bleeding. The nurses counted sponges before and after the first surgery, but not before the second. At the conclusion of the second surgery, the nurses told the surgeon that one sponge was missing. He could not manually locate it and decided to close the incision anyway. A followup x-ray several hours later revealed the location of the sponge, and a third surgical procedure was performed to remove it from the patient. She died two weeks later. The plaintiffs suit alleged a specific act of negligence against the hospital — the failure of the hospital’s nursing staff to count sponges properly, resulting in a sponge being left in his wife’s body during the second of the two emergency surgeries. In Walston, it was the hospital that moved for [insummary judgment, supported by the expert opinion of the medical review panel that the hospital staff had not been negligent. The plaintiff opposed the motion, but did not provide the name of an expert to testify as to the standard of care or the breach of that standard, urging the doctrine of res ipsa loquitur was applicable under these facts. This court rejected that argument and affirmed the summary judgment in favor of the hospital, stating:

In this matter, complicated medical considerations, concerning whether appropriate procedures were utilized by the surgical support staff given the emergency situation that [the patient’s] condition presented, do not involve negligence so obvious that it could be inferred. Given the complexity of the issues before the court, expert testimony was necessary.

Walston, 768 So.2d at 242.

From this sampling, the only cases in which the surgeon was found to be free of fault, even though a foreign material was found in the patient’s body after the completion of a surgical procedure, were the Seals and Walston cases from this court. These cases are factually dissimilar from the matter before us. In Seals, the foreign material could have been inserted in the patient’s hand during the weeks after the surgery when the wound re-opened, was cleaned, and was re-bandaged several times by persons other than the surgeon who performed the initial surgery. Moreover, the gauze that was eventually removed was a different material than that used in the surgery. Thus, there was a failure to prove that it was the initial surgeon who actually inserted the material. The Walston decision did not involve the patient’s claims against the surgeon, but only the claim that the nursing staff improperly counted the lap pads. Again, the facts of that case showed that, although the normal counting procedure was not followed between the two emergency surgeries, before the incision in the second surgery was closed, the nurses correctly informed the surgeon that a sponge was missing, and expert testimony agreed their actions met the standard of care. Therefore, under the enhanced burden of proof of LSA-C.C.P. art. 966(C), res ipsa loqui-tur could not defeat the motion for summary judgment.

In However, the facts of the case we are reviewing cannot be so easily distinguished from the line of cases following Grant. This court, in Kelly and in Seals, recognized and affirmed the legal principle established in Grant. And while we find the appellant’s argument in this case quite persuasive and compelling, we are constrained by this precedent from our court and by the apparent continuing viability of the principle of a non-delegable duty established in Grant, the latter of which is not within this court’s authority to change. Therefore, we conclude the lower court did not err in deciding on JNOV that Dr. Breaux had a duty to remove the lap pad from McLin’s body, that this duty could not be avoided by reliance on or delegation to the nurses who performed the surgical counts, and that his failure to remove the lap pad was, as a matter of law, a breach of the surgeon’s duty. Also, based on the' cases we have reviewed, the lower court did not abuse its discretion in apportioning fifty percent of the fault to Dr. Breaux under the facts of this case.

CONCLUSION

Based on the foregoing, the judgment of April 5, 2005, is affirmed. All costs of this appeal are assessed to Dr. Breaux and LAMMICO.

AFFIRMED.

McClendon, j., concurs.

      . The procedure was necessitated by an ovarian cyst, and included removal of the left ovary and fallopian tube and severing of internal adhesions.

      . The request for a medical review panel also included Lane Memorial Hospital. However, because the hospital was dismissed after a settlement, the panel addressed only the actions of the two doctors.

      . In fact, the parties stipulated that during the first surgery, Dr. Breaux placed all the lap pads inside McLin’s abdomen; that he had a duty to prevent any object being left inside of her abdomen; that he failed to remove all pads from inside her abdomen; that a second surgery was done five days -later, during which he removed a lap pad from inside McLin’s abdomen; and that the lap pad removed during the second surgery was one of those that had been used in the initial surgery.

      .According to the witnesses, a lap pad is a "dishcloth-size” cotton gauze pad with a long blue string or tape attached to it. The string is radiopaque, which makes it visible on an x-ray. These large pads are often folded or "wadded up” as they are inserted, because they are used to "pack” the intestines out of the way during abdominal surgeiy, to soak up blood and other bodily fluids, and to staunch bleeding.

      .Although, there is a difference between a lap pad and a sponge, which is much smaller and more compact, the cases often describe any absorbent material inserted into the patient's body during surgery as a "sponge.” From the description of the item left in the patient in the Grant case, it obviously was a lap pad, rather than a sponge.

      . A surgeon who testified as an expert in this case explained that metal attachments on lap pads were standard at one time, but have been replaced in the last two decades by the radiopaque tapes.

      . And there are many more, including the supreme court’s subsequent Hastings and Pfiffner cases, in which "leaving a sponge in a patient’s body” continues to be described as such "an obviously careless act” that "a lay person can infer negligence" on the part of the surgeon without the assistance of any expert testimony. This reference has also been used in contexts other than as an eviden-tiary rule or burden of proof. For instance, in a case discussing the history of continuing torts, the supreme court gave as an example, "the continuing injury resulting from a single act of malpractice, such as leaving a sponge inside a patient .... ” In re Medical Review Panel for Claim of Moses, 00-2643 (La.5/25/01), 788 So.2d 1173, 1186.

      . However, under the facts presented, a surgeon who assisted with the surgery was not held liable for leaving the lap sponge in the patient. A similar result was also reached by the third circuit in Megason v. St. Paul Fire & Marine Ins. Co., 355 So.2d 945 (La.App. 3rd Cir,), writ denied, 356 So.2d 1001 (La.1977).

      . This statement seems inconsistent, but in the context of the surgical counting procedure, it is not. According to testimony in the case before us, the routine "before-surgery” count of sponges involves removal of the sterile materials from packages, separating and laying them out in a prescribed pattern on a sterile field, counting them as they are laid out, and recording the count. If more sponges are needed during the surgery, these are opened, counted, and added to the "before-surgery” count. Apparently in the Walston case, a true "before-surgery” count was not done between the first and second surgeries, and the nurses simply added the new sponge count to the earlier count.

      . Apparently this opinion of the medical review panel included considerable other information, because this court noted, "There is a body of direct evidence, through medical records and witness testimony[,] as to the performance of sponge counts by the nursing staff.” Walston, 768 So.2d at 242.

      . For a well-reasoned discussion opposing the application of Grant and distinguishing it on its facts, see the dissenting opinion in Guilbeau, 325 So.2d at 398-400 (Miller, J., dissenting and assigning reasons in favor of granting a rehearing).

      . We are aware of the civilian concept which, theoretically, permits us to disregard jurisprudence when we are convinced that it does not follow positive law as expressed in legislative or constitutional enactments. See LSA-C.C. arts. 1-4. Although the argument has been made that we have such authority, we believe the rule of law and order is better served if supreme court precedent, should it be deemed abandoned or abrogated, is declared abandoned or abrogated by the supreme court. See Jackson v. Doe, 286 So.2d 751, 753-54 (La.App. 1st Cir.1974), judgment set aside on other grounds and remanded, 296 So.2d 323 (La. 1974). We note that the setting aside of the Jackson judgment and the overruling of the Grant case by the Garlington case effected only the abrogation of the principle of charitable immunity, which previously had been applied to shield certain hospitals from liability.

      . See Romero, 798 So.2d at 282 (finding no error in the trial court’s allocation of 70 percent fault to surgeon and 30 percent to nurses); Johnston, 693 So.2d at 1200-01 (affirming trial court’s reallocation of percentages of fault by JNOV to 61 percent to surgeon and 39 percent to nurses). In both of these cases, the count performed by the nurses was incorrect and the incorrect information was reported to the surgeon before the surgery was concluded.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    WHITTEN FOUNDATION v. Frank GRANGER, III, in His Capacity as Tax Assessor for East Baton Rouge Parish, Louisiana; the Louisiana Tax Commission; & Elmer Litchfield in His Capacity as Sheriff & Ex-Officio Tax Collector for East Baton Rouge Parish, Louisiana.
    No. 2004 CA 0934R.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Thomas D. Fazio, Baton Rouge, for Plaintiff-Appellant Whitten Foundation.
    Brian A. Eddington, Baton Rouge, for Defendant-Appellee East Baton Rouge Parish Assessor.
    Leu Anne Lester Greco, Baton Rouge, for Defendant-Appellee Sheriff Elmer Litchfield.
    Before: CARTER, C.J., KUHN, PETTIGREW, MCDONALD, and HUGHES, JJ.
   PETTIGREW, J.

12This matter is before the court pursuant to a writ granted by the Louisiana Supreme Court, in which the supreme court ordered this court to review the motion for summary judgment on the merits. Whitten Foundation v. Granger, 2005-1967 (La.2/10/06), 920 So.2d 864. Said decision reversed this court’s prior unpublished opinion, wherein we found there were material issues of fact in dispute and affirmed in part, reversed in part, • and remanded the case to the trial court. Whitten Foundation v. Granger, 2004-0934 (La.App. 1 Cir. 6/24/05, 904 So.2d 94) (unpublished).

The question presented by the instant appeal is whether the lease by Whitten Foundation (“Whitten”), a non-profit corporation, of its apartment units to non-low income tenants is a commercial use of properties that is related to its tax exempt purpose. From a denial of Whitten’s motion for summary judgment and a grant of summary judgment in favor of the taxing authority, Whitten appeals. For reasons hereinafter enumerated, we affirm' the judgment of the trial court.

FACTS

The facts of this case are largely uncontested and have been established through a Joint Stipulation of Facts executed between the plaintiff, the Whitten Foundation (“Whitten”), and the defendant, the Assessor for East Baton Rouge Parish, Louisiana (“Assessor”).

The parties have stipulated that Whitten is a Louisiana non-profit corporation that owns immovable property in East Baton Rouge Parish, Louisiana; namely, The Promenade at Sherwood apartment complex consisting of 219 rental units, and The Bengal apartment complex consisting of 183 rental units. For the year 2001, Whit-ten was assessed taxes totaling $111,414.48 on these two apartment complexes.

Whitten paid taxes in the amount of $102,207.83 to the Sheriff of East Baton Rouge Parish under protest on December 28, 2001. The remaining balance owed, namely $9,206.65, was paid by Whitten under protest on January 9, 2002.

In accordance with the provisions of Louisiana Revised Statute 47:2110, Whit-ten initiated the instant litigation within thirty days of its payment, seeking a refund of all ^amounts paid under protest for 2001 property taxes together with interest. Whitten claimed that it is a nonprofit, tax-exempt charitable-purpose entity that is exempt from ad valorem taxation pursuant to Article VII, Section 21(B) of the Louisiana Constitution of 1974. Claiming that the statute was unclear as to the proper defendant, Whitten filed suit against the Assessor, the Sheriff of East Baton Rouge, and the Louisiana Tax Commission.

On June 25, 2002, Whitten filed a motion for summary judgment, or in the alternative, for partial summary judgment and submitted the affidavit of its secretary-treasurer, Robert G. Barney, together with attachments. Following a hearing, the trial court denied Whitten’s motion on September 16, 2002.

As previously noted, Whitten and the Assessor agreed to a Joint Stipulation of Facts on September 2, 2003, that was subsequently filed into the record.

It is undisputed that Whitten has been determined to be exempt from federal income tax pursuant to Section 501(a) of the Internal Revenue Code as an “exempt purposes” organization described in Section 501(e)(3) of the Internal Revenue Code. Whitten’s exempt purpose is to provide decent, safe, and sanitary rental housing that is affordable to low-income and moderate-income persons. No part of Whit-ten’s net earnings inure to the benefit of any directors or officers of the corporation.

It was also stipulated that during the calendar year 2001, approximately 30.5 percent of the occupied units in The Promenade at Sherwood apartments were rented to and occupied by “lower-income tenants” defined as persons or families with adjusted income that does not exceed fifty (50%) percent of the median income for the applicable metropolitan statistical area, adjusted for household size. The remaining 69.5 percent of the occupied units in The Promenade at Sherwood apartments were rented to and occupied by non-lower-income tenants.

The parties also stipulated that during the calendar year 2001, approximately 88.6 percent of the occupied units in The Bengal apartments were rented to and occupied by |4“lower-income tenants” defined as persons or families with adjusted income that does not exceed fifty (50%) percent of the median income for the applicable metropolitan statistical area, adjusted for household size. The remaining 11.4 percent of the occupied units in The Bengal apartments were rented to and occupied by non-lower-income tenants. The Bengal apartments are predominantly occupied by students attending Louisiana State University.

It was also stipulated that Whitten provides no rent reduction for lower-income tenants. All tenants of The Promenade at Sherwood apartments and The Bengal apartments paid the same rental rates for the comparable unit sizes and types available during the calendar year 2001, regardless of income. Additionally, the rent paid by tenants of The Promenade at Sherwood apartments and The Bengal apartments is comparable to the rent paid by tenants in comparable commercially operated apartment complexes located in East Baton Rouge Parish.

The parties further stipulated that the median income for the Baton Rouge metropolitan statistical area in calendar year 2001 was $49,200.00. The Internal Revenue Code, federal regulations promulgated therewith, and Tax Regulatory Agreements, to which Whitten is a party, do not require that all of the tenants of these apartment complexes meet the definition of lower-income tenants in order for Whit-ten to maintain its exemption from federal income taxation under Section 501 of the Internal Revenue Code. Whitten’s leasing of units to non-lower income tenants is a commercial use of the properties. As part of their stipulation, Whitten and the Assessor expressly reserved for judicial determination the issue of whether such use constitutes a “commercial purpose unrelated to the exempt purpose of the corporation or association,” as that term is used in Art. VII, § 21(B) of the Louisiana Constitution.

On the same date the Joint Stipulation of Facts was filed into the record, Whitten re-urged its motion for summary judgment, or alternatively for partial summary judgment, Land submitted the affidavit of its president, Lamond Whitten, together with attachments. A cross-motion for summary judgment was filed by the Assessor, who urged that Whitten was not entitled to an exemption from ad valorem taxation or a refund of the taxes it paid under protest. Attached to Lamond Whitten’s affidavit was an exhibit that included a fisting of various apartment complexes owned by Whitten in other cities in Louisiana, including Lake Charles and Lafayette. It was this exhibit that the majority in the June 24, 2005 unpublished opinion of this court felt created material issues of fact, thus precluding summary judgment. Neither party submitted an affidavit concerning the operations of these other properties or facts concerning the proceeds of the Baton Rouge properties being utilized to operate these other facilities in Lake Charles and Lafayette. In the supreme court’s remand, they declare they do not perceive any genuine issues of material fact. We are constrained to follow their determination.

ACTION OF THE TRIAL COURT

Following a hearing, the trial court, through oral reasons for judgment, denied Whitten’s Motion for Summary Judgment, granted the Assessor’s Cross-Motion for Summary Judgment, and decreed that Whitten is not entitled to an exception from ad valorem taxation pursuant to Article VII, Section 21(B) of the Louisiana Constitution. A judgment to this effect was signed on February 13, 2004. On February 26, 2004, Whitten filed a motion seeking a devolutive appeal.

On May 24, 2004, the parties filed a motion to supplement the record on appeal with the affidavit of Lamond Whitten that was previously filed into the record along with exhibits on November 5, 2003.

ISSUES PRESENTED FOR REVIEW

In connection with its appeal in this matter, Whitten presents the following issues for consideration by this court:

Ir1. Whether the trial court erred in holding that all tenants of the subject apartment complexes must meet low income requirements in order for Whitten to be entitled to the exception it claims;
2. Whether the trial court erred in holding that the subject apartment complexes are operated for commercial purposes unrelated to Whitten’s charitable purpose;
3. Whether the trial court erred as a matter of law in denying the re-urged motion for summary judgment or, alternatively, for partial summary judgment filed by Whitten.

LEGAL PRECEPTS

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Co-op., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966 B.

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, and is now favored. La.Code Civ. P. art. 966 A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Williams v. Storms, 2001-2820, p. 3 (La.App. 1 Cir. 11/8/02), 835 So.2d 755, 758.

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. Bergeron v. Williams, 99-0886, p. 4 (La.App. 1 Cir. 5/12/00), 764 So.2d 1084, 1087, writ denied, 2000-1697 (La.9/15/00), 768 So.2d 1281. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary-burden at trial. La.Code Civ. P. art. 966 C(2). If the nonmoving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. Id.

|7A “genuine issue” is a “triable issue.” More precisely, an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. See Smith v. Our Lady of the Lake Hospital, Inc., 639 So.2d 730, 751 (La.1994).

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Simply put, a “material” fact is one that would matter at a trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

DISCUSSION AND ANALYSIS

The issues to be decided in this case are both factual and- legal ones. Louisiana’s Constitution exempts certain property from ad valorem taxation, among which is property owned by certain non-profit organizations. Article VII, § 21(B) of the Louisiana Constitution of 1974 provides in pertinent part:

In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation:
(B)(1)(a) Property owned by a nonprofit corporation or association organized and operated exclusively for religious, dedicated places of burial, charitable, health, welfare, fraternal, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax ....
| sNone of the property listed in Paragraph (B) shall be exempt if owned, operated, leased, or used for commercial purposes unrelated to the exempt purposes of the corporation or association.

The parties to this matter agree that the aforementioned constitutional provision establishes a four-point test to determine if an exemption from ad valorem taxation is appropriate:

(1) The property owner must be a nonprofit corporation organized and operated exclusively for charitable purposes;
(2) No part of the net earnings may benefit any private shareholder;
(3) The non-profit corporation must have been declared exempt from income taxation; and
(4) The property cannot be owned, operated, leased, or used for any commercial purpose unrelated to the exempt purposes of the corporation.

In addition, it is well established that exemptions from taxation are strictly construed against the taxpayer claiming the benefit thereof and must be clearly, unequivocally, and affirmatively established by the taxpayer. Archer Daniels Midland Company v. Parish School Board of the Parish of St. Charles, 2001-0511, p. 11 (La.11/28/01), 802 So.2d 1270,1278.

Whitten’s compliance with the second and third points set forth above is undisputed. The parties have stipulated that no part of Whitten’s earnings benefit any private shareholder and Whitten has been determined to be exempt from income taxation. The parties disagree strongly with respect to whether Whitten’s operation of two apartment complexes in East Baton Rouge Parish constitutes a “charitable purpose” and whether said properties are being operated for commercial purposes unrelated to the exempt purposes of the corporation.

Existence of a Charitable Purpose

The definition of exactly what constitutes a “charitable purpose” is not set forth in the Louisiana Constitution. The language of Article VII, Section 21(B) of the Louisiana Constitution was analyzed by the fourth circuit in Hotel Dieu v. Williams, 403 So.2d 1255, 1256 (La.App. 4 Cir.1981) affd, 410 So.2d 1111 (La.1982), wherein the court concluded:

19[T]he language of art. 7 s 21(B)(1) will not support any other grammatical construction than that it exempts all “(property owned by a nonprofit corporation” which corporation (not which corporation’s property) is “organized and operated exclusively” for specified benevolent purposes .... It is only the last paragraph of s 21(B) that reduces the universality of that exemption, and that last paragraph denies the exemption only to property “owned, operated, leased or used for commercial purposes unrelated to the exempt purposes of the corporation ...” We conclude that the providing of medical office (and pharmacy and laboratory) spaces and parking space, in the immediate vicinity of a nonprofit hospital, by the hospital either directly or through a related nonprofit corporation created for that purpose, is not a “commercial purpose unrelated to the exempt purposes” of a hospital.

Accordingly, the fourth circuit in Hotel Dieu, reversed the trial court’s judgment in favor of the defendant taxing authorities, and decreed the subject property exempt from taxation.

In Board of Administrators of the Tulane Education Fund v. Louisiana Tax Commission, 97-0663, p. 4 (La.App. 4 Cir. 10/1/97), 701 So.2d 702, 705, writ denied, 97-2745 (La.1/30/98), 709 So.2d 705, the fourth circuit was confronted with the question of whether vacant, undeveloped land owned by a non-profit corporation is exempt from ad valorem taxation. The fourth circuit referenced its earlier decision in Hotel Dieu, and concluded that even assuming defendants were correct in their assertion that said land was being held by the non-profit corporation in the hopes that it might someday appreciate in value, the land was not being used for a “commercial” purpose and was not therefore excluded from the general tax exemption set forth in Section 21(B)(1)(a). The fourth circuit therefore affirmed the declaratory judgment by the trial court and decreed the subject property exempt from taxation.

Later in New Orleans Towers Affordable Housing Corp., Inc. v. Kahn, 98-1240, p. 7 (La.App. 4 Cir. 12/29/98), 744 So.2d 50, 53, the fourth circuit affirmed a decision by the trial court that concluded that the City of New Orleans had offered no proof whatsoever to support its allegation that property purchased and substantially renovated by a non-profit corporation for use as low-income housing for elderly and disabled citizens was a commercial enterprise operating under the “cloak of a non-profit organization.” The trial court observed to the contrary that the non-profit corporation offered proof to support its claim to tax exempt status, specifically an IRS ruling that | ^providing adequate housing or affordable housing to low-income families was a charitable purpose.

In Johnson v. New Orleans Charities Building Corporation, 2000-2772 (La.App. 1 Cir. 2/15/02), 812 So.2d 741, the Orleans Parish assessor appealed an adverse ruling by the Orleans Parish Board of Review to the Louisiana Tax Commission and the 19th Judicial District Court; however, both tribunals upheld the earlier decision of the Board of Review. The assessor ultimately appealed to this court. The sole issue presented was whether a non-profit corporation that leased portions of an office building for commercial purposes unrelated to the corporation’s exempt purposes is entitled to a partial tax exemption for the non-commercially leased portion of that singularly-taxed property. It was clearly established from the decisions of the earlier tribunals that the portions of the office building leased for commercial purposes were leased for purposes unrelated to the non-profit organization’s tax exempt status. Citing the fourth circuit’s decisions in Hotel Dieu and Board of Administrators and relying on the provisions of La. Const. Art. VII § 21(B)(1), this court ruled that a partial exemption from ad valorem taxation, applied proportionately, is not provided for by La. Const. Art. VII § 21(B).

In a recent decision, the second circuit, in Willis-Knighton Medical Center v. Ed-miston, 39,374 (La.App. 2 Cir. 4/6/05), 899 So.2d 736, affirmed the denial by the trial court of a motion for summary judgment filed by the assessor. In a case involving facts analogous to those presented here, the second circuit was confronted with a situation where Willis-Knighton Medical Center, a non-profit corporation, leased a portion of a medical office building, immediately adjacent to its facility, to private physicians. The second circuit concluded that based upon the record and the circumstances presented, the leasing of property to private physicians for the treatment of patients is a commercial purpose that is reasonably related to Willis-Knigh-ton’s exempt purpose of delivering medical care to individuals. Willis-Knighton, 39,-374 at 7, 899 So.2d at 740.

We turn now to the issue presented by the instant case, i.e., whether Whitten’s leasing of apartment units to non-lower income tenants is a commercial use of the properties that is related to Whitten’s tax exempt purpose.

lnA common thread of all the above-mentioned cases is that the commercial use of the non-profit corporation’s immovable property must be operated for the benefit of the charitable purposes of the corporation to entitle the non-profit corporation the exemption of ad valorem property taxes under Art. VII, § 21(B) of the Louisiana Constitution.

The joint stipulation introduced by the parties provides as follows in paragraphs 11 and 12:

11.
Whitten Foundation provides no rent reduction for Lower Income Tenants. All tenants at The Promenade at Sherwood Apartments and The Bengal Apartments paid the same rental rates for the comparable unit sizes and types available during the calendar year 2001, regardless of income.
12.
The rent paid by tenants of The Promenade at Sherwood Apartments and The Bengal Apartments is comparable to that paid by tenants in comparable commercially operated apartment complexes located in East Baton Rouge Parish.

There is no evidence in the record before us that the low-income tenants received any type of reduction or benefits from Whitten’s operation of the apartment complexes as a commercial operation. In fact, the joint stipulation indicates the low-income tenants are paying the same or comparable rates as any other commercially operated apartment complex in the Baton Rouge area. There is no question that Whitten qualifies as a non-profit corporation for the purposes of Section 501 of the Internal Revenue Code. However, Art. VII, § 21(B) of the Louisiana Constitution does not deal with income taxes. It addresses Louisiana ad valorem property taxes, which are separate and distinct from the Internal Revenue Code or the Louisiana Income Tax Laws. In addition to requiring that a corporation be organized as a non-profit corporation, Art. VII, § 21(B) of the Louisiana Constitution also requires that the corporation owner must operate exclusively for charitable purposes and that the property cannot be used for any commercial purpose unrelated to the exempt purposes of the corporation.

There is no evidence in the record that the property owner operated exclusively for charitable purposes, nor is there any evidence in the record that The Promenade at |12Sherwood apartment complex and The Bengal apartment complex was operating for a charitable purpose.

For these reasons The Promenade at Sherwood apartment complex and The Bengal apartment complex are not exempt from ad valorem property taxation under Art. VII, § 21(B) of the Louisiana Constitution. The trial court judgment should be affirmed.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s judgment denying Whitten’s motion for summary judgment and affirming the summary judgment in favor of the Assessor for East Baton Rouge Parish, Louisiana. All costs of this appeal shall be borne by Whitten.

AFFIRMED.

      . The Louisiana Tax Commission was subsequently dismissed from this suit through a joint motion to dismiss without prejudice.

      . The affidavit of Lamond Whitten together with the attachments was apparently considered by the trial court, but was inadvertently omitted from the record in this appeal. Accordingly, the parties have filed a joint motion to supplement the appellate record with the affidavit of Lamont Whitten together with attachments so as to be considered by this court in connection with this appeal.


author: WELCH, J.

text:
    STATE of Louisiana v. Roderick Karzon GODBOLT.
    No. 2006 KA 0609.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Walter P. Reed, District Attorney, Cov-ington, Kathryn Landry, Baton Rouge, for State — Appellee.
    Mary E. Roper, Baton Rouge, for Defendant — Appellant Roderick Godbolt.
    Roderick K. Godbolt, Angola, In Proper Person Defendant — Appellant.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   WELCH, J.

| ¡.The defendant, Roderick Karzon God-bolt, was charged by bill of information with simple burglary, in violation of La. R.S. 14:62. The defendant pled not guilty. After a jury trial, the defendant was .found guilty as charged. The trial court denied the defendant’s motion for post-verdict judgment of acquittal and motion for new trial. After waiving sentencing delays, the defendant was sentenced to six years imprisonment at hard labor. The trial court denied the defendant’s motion to reconsider sentence. The defendant was later adjudicated a third felony habitual offender. The trial court vacated the previously-imposed sentence and sentenced the defendant to life imprisonment at hard labor without the benefit of parole. The defendant now appeals, raising error to the sufficiency of the evidence and the trial court’s failure to inform the defendant of the time delays for filing an application for post-conviction relief. For the following reasons, we affirm the defendant’s conviction, habitual offender adjudication, and sentence.

FACTS

During the morning hours of January 5, 2004, the defendant gained entry of a 1988 Nissan Stanza that belonged to Chris Hogan, and removed the stereo from the dash compartment of the car. In doing so, the defendant tore out the chassis and mounting plate for the stereo. Chris Hogan’s vehicle was parked on the side of his residence, located at 718 May Avenue in Boga-lusa, Louisiana. The defendant’s presence was discovered when Kevin Tillman, Chris Hogan’s cousin, was awoken by a noise that he identified as glass being shattered. Dwayne Hogan, Chris |sHogan’s nephew, called 911, while Chris Hogan and Kevin Tillman accosted the defendant. Officers of the Bogalusa Police Department promptly arrived at the scene. Chris Hogan and Kevin Tillman escorted the defendant to Lieutenant James Smith. Evidence was collected at the scene and the witnesses provided statements to the police. Based on these facts, the defendant was charged and convicted of the instant offense.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant avers that the evidence presented herein is insufficient to support the conviction. The defendant specifically argues that there is no evidence that he had specific intent to commit a felony or theft when he entered Chris Hogan’s vehicle. The defendant notes that during his trial testimony he stated that he was under the mistaken belief that he had permission to enter the vehicle and take the radio and that he was intoxicated at the time of the forced entry. Citing La. R.S. 14:16, the defendant argues that this mistake of fact precludes the presence of specific intent. The defendant concludes that the evidence presented by the State did not exclude his reasonable hypothesis of innocence.

The constitutional standard for testing the sufficiency of evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is whether or not the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1, 18. This standard is codified in La.C.Cr.P. art. 821.

The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the trier of fact|4must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Graham, 2002-1492 (La.App. 1st Cir.2/14/03), 845 So.2d 416, 420. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis, which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La.1984).

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Robins, 2004-1953 (La.App. 1st Cir.5/6/05), 915 So.2d 896, 899. It is not the function of an appellate court to assess credibility or reweigh the evidence. Appellate review for minimal constitutional sufficiency of evidence is a limited one restricted by the standard developed in Jackson. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

To be guilty of simple burglary, a defendant must have the specific intent to commit a felony or theft therein at the time of his unauthorized entry. State v. Thomas, 540 So.2d 1150, 1153 (La.App. 1st Cir.1989); State v. Guidry, 476 So.2d 500, 503 (La.App. 1st Cir.1985), writ denied, 480 So.2d 739 (La.1986). Specific intent is defined as the state of mind, which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1).

Specific intent is a legal conclusion to be resolved ultimately by the trier of fact. Guidry, 476 So.2d at 503. Since specific criminal intent is a state of mind, it need not be proven as a fact, but it may be inferred from the circumstances present and action of the defendant. Guidry, 476 So.2d at 503. Voluntary intoxication is a defense to a prosecution for simple burglary only if the circumstances indicate that it has precluded the presence of specific criminal intent. La. R.S. 14:15(2); | fGuidry, 476 So.2d at 503. The defendant has the burden of proving the existence of that condition at the time of the offense. The specific legal question is not when the requisite specific intent was formed, but rather whether, at the time the unauthorized entry occurred, the defendant was so intoxicated as to preclude the existence of any specific intent on his part to commit a theft or felony therein. State v. Lentz, 306 So.2d 683, 686 (La.1975). When defenses, which actually defeat an essential element of an offense, such as intoxication, are raised by the evidence, the State must overcome the defense by evidence, which proves beyond a reasonable doubt that the mental element was present despite the alleged intoxication. Guidry, 476 So.2d at 503.

Louisiana Revised Statutes 14:16 states: “Unless there is a provision to the contrary in the definition of a crime, reasonable ignorance of fact or mistake of fact which precludes the presence of any mental element required in that crime is a defense to any prosecution for that crime.” Reasonable ignorance can be a defense under La. R.S. 14:16, but not “unreasonable ignorance.” State v. Henderson, :296 So.2d 805, 807 (La.1974); State v. Kibbe, 2004-349 (La.App. 5th Cir.10/26/04), 887 So.2d 565, 569.

State witness Dwayne Hogan testified that he and Kevin Tillman alerted Chris Hogan when they realized someone was outside of the home. When they looked outside, they observed the defendant standing near Chris Hogan’s car with a radio in his hand. Chris Hogan and Kevin Tillman physically restrained the defendant until the police arrived.

Chris Hogan testified that he had installed a new stereo in his car two weeks prior to the instant offense. After being alerted by his nephew and cousin, Chris Hogan walked outside of his residence and observed the defendant standing outside with the stereo in his hand. The rear passenger-side window of Chris Hogan’s vehicle was shattered. Chris Hogan knew the defendant and immediately 1 firecognized him. Chris Hogan stated, “When I come out, he [the defendant] was getting ready to run, so I apprehended him.” The defendant had a knife in his hand at the time. Kevin Tillman was able to remove the knife from the defendant’s hands as they apprehended him. Chris Hogan also observed a tire iron at the scene and concluded that the defendant used it to shatter the car window. The console dashboard area of the vehicle was damaged. Chris Hogan testified that he had not given the defendant permission to enter his vehicle or his premises.

During his trial testimony, the defendant admitted to breaking into the vehicle and taking the stereo. The defendant also admitted that Chris Hogan did not give him permission to enter the vehicle or take the stereo. The defendant stated that he had been fixing radios and reselling them during the time period in which the offense occurred. According to the defendant, Kevin Tillman had given him permission to take a broken radio out of Kevin Tillman’s vehicle. The defendant entered Chris Hogan’s vehicle mistakenly believing that it belonged to Kevin Tillman, since he had previously observed Kevin Tillman driving the vehicle. Thus, at the time of the forced entry, the defendant thought that he had permission to take the stereo. The defendant stated that he was intoxicated at the time of the offense. The defendant testified that several months after the offense he apologized to Chris Hogan and paid nearly one hundred dollars restitution! The defendant testified that the offense was not committed intentionally, stating, “I just went in the wrong car. If I would have went in Tillman’s car, that would have been different, but Chris didn’t give me permission to go in his car, and I was intoxicated, I was drunk that day, and I just misjudged some things.”

The defendant argues that he believed that he had permission to enter the vehicle at the time of the offense, but at the same time admits that he was intoxicated at the time of the offense and exercised poor judgment. There was no evidence presented as to the amount of alcohol consumed or the exact time it was | consumed. The circumstances do not establish that defendant’s alleged intoxication precluded the presence of the specific criminal intent required in simple burglary. Viewing this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have determined that the defendant entered the vehicle with the specific intent to commit a theft therein. Accordingly, we find that a reasonable juror could have excluded the unreasonable hypothesis that the defendant mistaken!y believed that he had permission to break into a vehicle and destructively remove a stereo. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In the second counseled assignment of error, the defendant avers that the trial court failed to advise him of the prescriptive period for applying for post-conviction relief under La.C.Cr.P. art. 930.8(C). The State concedes that such advice was not given.

Louisiana Code of Criminal Procedure article 930.8(C) provides that, at the time of sentencing, the trial court shall inform the defendant of the prescriptive period for applying for post-conviction relief. We agree with the defendant’s contention that he was not advised pursuant to La.C.Cr.P. art. 930.8(C). However, this article contains merely precatory language and does not bestow an enforceable right upon an individual defendant. See State ex rel. Glover v. State, 93-2330, 94-2101, 94-2197 (La.9/5/95), 660 So.2d 1189, 1201, abrogated in part on other grounds, State ex rel. Olivieri v. State, 2000-0172, 2000-1767 (La.2/21/01), 779 So.2d 735, cert. denied, Olivieri v. Louisiana^ 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). While La. C.Cr.P. art. 930.8(C) directs the trial court to inform the defendant of the prescriptive period at the time of sentencing, a failure to do so on the part of the trial court has no bearing on the sentence and is not grounds to reverse the sentence or remand the case for re-sentencing and the article Ldoes not provide a remedy for an individual defendant who is not told of the limitations period. See Glover, 660 So.2d at 1201. Moreover, as the issue has been raised herein, it is apparent that the defendant has notice of the limitation period and/or has an attorney that is in the position to provide him with such notice. Although we have done so in the past, we decline to remand. Compare State v. Brooks, 40,186 (La.App. 2nd Cir.10/26/05), 914 So.2d 110, 115-116; State v. Dupree, 2002-1158 (La.App. 4th Cir.10/23/02), 831 So.2d 379, 381. Out of an abundance of caution and in the interest of judicial economy, we note that La.C.Cr.P. art. 930.8(A) generally provides that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence have become final under the provisions of La.C.Cr.P. arts. 914 or 922.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

      . The nial court specifically found that the State proved the following predicate convictions (the offense and date of conviction are hereby noted): distribution of cocaine on March 13, 1995; possession of cocaine on November 15, 1994; simple burglary of an inhabited dwelling on November 15, 1994; distribution of cocaine on November 15, 1994; distribution of cocaine on November 15, 1994; distribution of cocaine on May 10, 1993; and distribution of cocaine on May 10, 1993. The trial court further specified that the defendant was being sentenced pursuant to La. R.S. 15:529.1 (A)(l)(b)(ii). At least two of the defendant’s prior felonies, along with the instant conviction, mandate the imposed life sentence pursuant to that section of the habitual offender law.


author: GAIDRY, J.

text:
    John F. GUILBEAU and Stacey K. Guilbeau v. CUSTOM HOMES BY JIM FUSSELL, INC.
    No. 2006 CA 0050.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Gary M. Cooper, Baton Rouge, Counsel for Plaintiffs/Appellants John F. Guilbeau and Stacey K. Guilbeau.
    Robert E. Kerrigan, Jr., Kermit L. Roux, III, New Orleans, Counsel for De-fendani/Appellee Custom Homes by Jim Fussell, Inc.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

| ?The plaintiffs, John F. Guilbeau and Stacey K. Guilbeau, appeal a summary judgment rendered in favor of the defendant, Custom Homes by Jim Fussell, Inc., dismissing their cause of action for damages under the New Home Warranty Act, La. R.S. 9:3141, et seq. We reverse the trial court’s judgment on the procedural basis described below and remand the case to the trial court.

FACTS AND PRIOR PROCEEDINGS

Plaintiffs owned a lot in East Baton Rouge Parish, and on February 4, 1999 engaged defendant to construct a residence on the lot for the sum of $221,750.00. The construction contract provided that plaintiffs “specifically waive[d] any claim for loss or damage caused by soil conditions or soil movement pursuant to the provisions of Louisiana R.S. 9:3144(B)(18).”

After construction was complete, plaintiffs occupied the residence. Sometime thereafter, they noticed cracks in the walls and floors and other problems suggestive of structural defects.

On August 12, 2003, plaintiffs instituted this litigation by filing a verified petition for damages, alleging that their residence’s foundation and slab were defective, due to defendant’s defective design of the slab, defective site and base preparation, and defective construction. Plaintiffs further alleged that they retained two engineering firms whose testing revealed the foregoing defects. They alleged that they were therefore entitled to damages, costs, and attorney fees. Defendant answered the lapetition, admitting its construction of the residence according to the terms of the construction contract, but denying any liability to plaintiffs.

After discovery was undertaken, including the deposition of Michael Stein, the representative of one of plaintiffs’ expert engineering firms, defendant filed a motion for summary judgment. By means of its motion, defendant sought the dismissal of plaintiffs’ claims on the grounds that there was no genuine issue of material fact that plaintiffs’ claims were caused by soil conditions or soil movement and thus fell within the express waiver of warranty authorized by La. R.S. 9:3144(B)(18). In its supporting memorandum to the trial court, defendant referred to Mr. Stein’s deposition testimony and the content of the reports of plaintiffs’ two expert engineering firms as supporting its position. Plaintiffs filed no opposing affidavits or depositions, and no opposition memorandum appears in the record.

The trial court heard the motion on September 19, 2005, and granted summary judgment in defendant’s favor. The trial court’s judgment was signed on September 27, 2005. However, the judgment merely provided that the motion was granted, and contained no decretal language dismissing plaintiffs’ claims in whole or in part, or otherwise disposing of any issue. Plaintiffs then instituted this appeal.

On March 6, 2006, this court issued an order that the parties show cause by March 21, 2006, by briefs, why the appeal should not be dismissed on the grounds that it lacked appropriate decretal language as to the case’s disposition. On March 27, 2006, the trial court signed an amended judgment, granting the motion for summary judgment and dismissing plaintiffs’ claims. This court was subsequently advised by the trial court that the amended judgment had been signed, and we recalled the prior order on June 13, 2006. However, as the record on appeal had not been ^supplemented with the amended judgment, we issued another order the same date that the parties so supplement the record within thirty days. Over thirty days later, on August 21, 2006, plaintiffs obtained an order from the trial court, supplementing the record with the amended judgment.

On September 29, 2006, upon further review of the record, we issued another order ex proprio motu for further supplementation of the record, noting that the deposition of one of plaintiffs’ experts and two expert reports, referenced in the parties’ appeal briefs, were absent from the record. In response to that order, the parties filed a joint motion in this court to supplement the appellate record with the deposition and reports.

DISCUSSION

The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). (Emphasis supplied.) Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050 (per curiam).

Although Mr. Stein’s deposition and the expert reports were mentioned in defendant’s supporting memorandum, the memorandum did not designate them as exhibits, and they were not attached to either the motion or the memorandum. The only exhibits referenced and attached |Bwere plaintiffs petition and the notarized construction contract, designated as Exhibits A and B respectively. Our thorough review of the entire record, the trial court minutes, the limited hearing transcript, and the documents attached to the joint motion to supplement the appellate record reveals that the deposition and expert reports were not in fact filed with the trial court prior to the hearing nor introduced into evidence at that time. Thus, the trial court could not properly consider the content of those documents in determining the motion for summary judgment.

In reviewing a summary judgment, this court can review only those documents either introduced into evidence at the hearing or previously filed in the trial court record. The court of appeal is not a court of original jurisdiction, and cannot receive new evidence or exhibits. B.W.S., Jr. v. Livingston Parish School Board, 02-1981, p. 2 (La.8/16/06), 936 So.2d 181, 182 (per curiam). We are not permitted to deviate from the procedural and evidentiary rules for summary judgment established by our legislature. As much as we or the parties might prefer, we cannot subordinate adherence to proper civil procedure to considerations of judicial efficiency and convenience. Id Accordingly, the joint motion to supplement the appellate record must be denied. This court on de novo review may not properly consider the deposition and reports now offered by the parties.

The only exhibits properly before the trial court at the time of the hearing were the verified petition and the notarized construction contract filed in the record with defendant’s memorandum. Based upon the content | fiof the record properly before the trial court at that time, we must conclude that defendant failed to meet its requisite burden of proof for summary judgment in its favor. We therefore reverse the trial court’s judgment and remand this case for further proceedings.

MOTION TO SUPPLEMENT APPELLATE RECORD DENIED; REVERSED AND REMANDED.

      . This statutory provision states that "[ujnless the parties otherwise agree in writing, the builder's warranty shall exclude ... [a]ny loss or damage to a home caused by soil conditions or soil movement if the home is constructed on land owned by the initial purchaser and the builder obtains a written waiver from the initial purchaser for any loss or damage caused by soil conditions or soil movement."

      . The deposition and reports attached to the parties’ joint motion to supplement the appellate record bear no date receipts, filing certificates, exhibit numbers, or other indicia of having been submitted to the clerk of court or the trial court's minute clerk for filing. We can only presume from the trial court’s decision that the deposition and reports were submitted directly to the presiding judge in some fashion but not to the clerk of court.

      . See also Gaspard v. Graves, 03-0844 (La. App. 1st Cir.2/23/04), 874 So.2d 181, and Rule 9.10, Louisiana Rules for District Courts.


author: KUHN, J.

text:
    Clarence SAMUELS v. Jerry GOODWIN, Venetia Michael, and Richard Stalder.
    No. 2005 CA 2131.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Clarence Samuels, St. Gabriel, Plaintiff/Appellee Pro se.
    Susan Wall Griffin, Baton Rouge, Counsel for Defendants/Appellants Jerry Goodwin, Venetia Michael, and Richard Stalder.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   KUHN, J.

| gDefendants-appellants, Jerry Goodwin, a deputy warden of the David Wade Correctional Center, Venetia Michael, the warden of the David Wade Correctional Center (collectively the wardens), and Richard Stalder, the Secretary of the Department of Public Safety and Corrections (the Department) appeal the trial court’s judgment granting declaratory relief to petitioner-appellee, Clarence Samuels. We reverse.

FACTS AND PROCEDURAL BACKGROUND

Samuels was convicted of simple robbery and incarcerated in the David Wade Correctional Center. He filed this petition for judicial review after having been denied relief at every level of the three-step Administrative Remedy Procedure. In his initial request for relief, Samuels contended that subsequent to his initial refusal to provide a blood sample for the state’s DNA database, see La. R.S. 15:601-620, the wardens threatened to charge him with a disciplinary infraction, place him on lock-down, forfeit good time, and take the blood sample against his will. Samuels subsequently provided the department with a blood 1 ¡¡sample as requested. But in his petition for judicial review, Samuels asserted that the wardens collected his blood inappropriately, urging that the department regulations limit the method of collecting his DNA sample to use of a buccal swab.

After determining that the department regulation permits use of force to obtain a sample of DNA against a prisoner’s will, a commissioner for the Nineteenth Judicial District Court concluded that there was no coercion by the wardens. Insofar as his challenge of the method in which his DNA sample was collected, the commissioner noted that the only relief available to Sam-uels was a declaratory judgment finding that defendants did not follow the proper procedures. The commissioner recommended that the department’s decision to deny Samuels relief be reversed, reasoning the department was manifestly erroneous because its regulations required the wardens to use a swab rather than draw blood for a prisoner who refused to provide a DNA sample when initially requested. The district court judge agreed and issued a judgment granting Samuels the requested declaratory relief. This appeal by defendants followed.

DISCUSSION

La. R.S. 15:1177 A(9) provides that the court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are

(a) In violation of constitutional or statutory provisions.
(b) In excess of the statutory authority of the agency.
(c) Made upon unlawful procedure.
(d) Affected by other error of law.
|4(e) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(f) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

The trial court applies the manifest error standard of review in reviewing the facts as found by the administrative tribunal; the trial court applies the arbitrary and capricious test in reviewing the administrative tribunal’s conclusions and its exercise of discretion. Save Ourselves, Inc. v. Louisiana Environmental Control Comm’n, 452 So.2d 1152, 1159 (La.1984); Rochon v. Whitley, 96-0835, pp. 4-5 (La.App. 1st Cir.2/14/97), 691 So.2d 189, 192. On review of a district court’s judgment in a suit for judicial review under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Hakim-El-Mumit v. Stalder, 03-2549, p. 3 (La.App. 1st Cir.10/29/04), 897 So.2d 112, 113-14.

Defendants contend the trial court erred in finding that if a prisoner initially refuses to give the DNA sample required by La. E.S. 15:609, the only proper method for collection is use of a buccal swab. Defendants further assert the trial court erred in its interpretation of and conclusion that they violated Department Regulation No. B-08-016.

Department Regulation No. B-08-016 provides in relevant part:

1,7. PROCEDURES:
A. All DNA samples will be obtained using a DNA Database Blood Collection Kit for DNA analysis....
8. REFUSAL TO SUBMIT SAMPLE:
A. The Warden or designee shall obtain a DNA sample from any inmate who is required by statute to submit a sample. If the inmate refuses to provide a sample, the Warden or designee is authorized pursuant to La. R.S. 15:609(1), to employ reasonable force as necessary to obtain a sample. In this case, buccal swab DNA collection is authorized.

Based on these provisions, the trial court concluded that Samuels was entitled to a judgment granting declaratory relief.

The meaning of a law must first be sought in the language employed. If that is plain, it is the duty of the courts to enforce the law as written. David v. Our Lady of the Lake Hosp., Inc., 02-2675, p. 11 (La.7/2/03), 849 So.2d 38, 46. Thus, interpretation of any statute begins with the language of the statute itself. SWAT 21 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 12 (La.6/29/01), 808 So.2d 294, 302. Words of a law must be given their generally prevailing meaning. La. C.C. art. 11. When the wording of a revised statute is clear and unambiguous, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. R.S. 1:4. Rather, the law must be applied as written, and no further interpretation can be made in search of the intent of the legislature. La. C.C. art. 9; Trahan v. Coca Cola Bottling Co. United, Inc., 04-0100, p. 6 (La.3/2/05), 894 So.2d 1096, 1102. The statutory and jurisprudential rules for statutory construction and interpretation apply equally well to ordinances, rules, and regulations. Cao v. Stalder, 04-0650, p. 5 (La.App. 1st Cir.5/6/05), 915 So.2d 851, 854.

|fiThe phrase, “In this case, buccal swab DNA collection is authorized,” in section 8(A) is obviously limited to those instances in which the warden is required to “employ reasonable force as necessary to obtain a sample.” The section otherwise mandates the Warden or designee “obtain a DNA sample from any inmate” without reference to the method of collection. Thus, use of the DNA Database Blood Collection Kit as specified in section (7)(A) under these circumstances was an appropriate method of collecting a DNA sample.

Because the undisputed facts demonstrate that the wardens did not have to employ reasonable force to obtain the DNA sample from Samuels, the department’s decision to collect the sample by drawing blood was in conformity with the regulation. The district court erred in concluding, that the department was manifestly erroneous in finding that it was entitled to collect a sample of Samuels’ DNA by a method other than use of a buccal swab. Its grant of declaratory relief is reversed.

DECREE

For all these reasons, the district court’s judgment is reversed. Appeal costs are assessed against petitioner-appellee, Clarence Samuels.

REVERSED.

      . According to express findings and objectives set forth in La. R.S. 15:602:
      The Louisiana Legislature finds and declares that DNA data banks are important tools in criminal investigations, in the exclusion of individuals who are the subject of criminal investigations or prosecutions, and in deterring and detecting recidivist acts. More than forty states have enacted laws requiring persons arrested for or convicted of certain crimes, especially sex offenses, to provide genetic samples for DNA profiling. Moreover, it is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification and detection of individuals in criminal investigations and in the identification of missing persons, to assist in the recovery or identification of human remains from disasters, and to assist with other humanitarian identification purposes. It is therefore in the best interest of the state to establish a DNA data base and a DNA data bank containing DNA samples submitted by individuals arrested, convicted, or presently incarcerated for felony sex offenses and other specified offenses.
      See also La. R.S. 15:609, particularly providing for the drawing and taking of DNA samples.

        . The parties do not challenge the validity, see La. R.S. 15:604(2), or applicability of this regulation to the facts of this case.


author: CARTER, C.J.

text:
    Dorothy L. SANDERS v. COASTAL BRIDGE CO., INC.
    No. 2005 CA 2661.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Michael B. Forbes, Hammond, for Plaintiff-Appellant, Dorothy L. Sanders.
    Collins C. Rossi, Covington, for Defendant-Appellee, Coastal Bridge Co., Inc.
    Before: CARTER, C.J., WHIPPLE, and MCDONALD, JJ.
   CARTER, C.J.

lain this workers’ compensation dispute, the claimant appeals a judgment awarding her thirteen months of temporary total disability benefits for a mental injury incurred as a result of work-related mental stress, along with penalties and attorney fees. For the following reasons, we affirm.

BACKGROUND

Dorothy L. Sanders’ claim for workers’ compensation benefits arises out of a traumatic incident that occurred on September 2, 2003, while she was working for her employer, Coastal Bridge Co., Inc. While Ms. Sanders’ was performing her construction carpenter job on a drawbridge that was under construction at 70 — 80 feet above the ground, the lift span of the drawbridge suddenly and unexpectedly moved, causing heavy debris to fall to the ground. Consequently, Ms. Sanders was trapped in a small area adjacent to the operator’s house near the side of the drawbridge. Ms. Sanders was rescued along with other employees via a safety basket. During the rescue, Ms. Sanders viewed a part of the body of a co-worker who had been crushed and killed by the falling bridge debris. Ms. Sanders left work early that day and did not return for one week. When she returned to work, she reported feeling uncomfortable performing her regular job duties, so her employer assigned her to a different duty. Ms. Sanders worked approximately two more weeks but then stopped in order to receive counseling and treatment for post-traumatic stress disorder and depression. Ms. Sanders filed a disputed claim for compensation on October 14, 2003.

A trial was held on May 2, 2005, wherein the workers’ compensation judge (WCJ) found that Ms. Sanders had proven by clear and convincing evidence that she had suffered a mental injury as a result of the September 2, | s2003 work-related accident. This finding is not questioned on appeal. The WCJ awarded Ms. Sanders temporary total disability (TTD) benefits for thirteen months, from the date of the accident until October 2004. The WCJ also awarded penalties and attorney fees to Ms. Sanders. On appeal, Ms. Sanders argues that the WCJ erroneously discontinued her TTD benefits in light of clear and convincing evidence that she was unable to work, and the WCJ erroneously failed to award her supplemental earnings benefits (SEBs).

LAW AND ANALYSIS

In order to be entitled to disability benefits, the work-related injury must be disabling, whether it be temporary or permanent. Anderson v. Eckerd Corp., 04-1053 (La.App. 1 Cir. 5/6/05), 915 So.2d 901, 904, writ denied, 05-1520 (La.1/9/06), 918 So.2d 1044. Benefits for TTD shall be awarded only if a claimant proves by clear and convincing evidence that she is physically unable to engage in any employment. LSA-R.S. 23:1221(l)(c); Collins v. Family Dollar Stores, Inc., 99-0622 (La.App. 1 Cir. 5/12/00), 760 So.2d 1210, 1214, writs denied, 00-2356, 00-2363 (La.11/13/00), 773 So.2d 727; Gordon v. Sandersons Farms, 96-1587 (La.App. 1 Cir. 5/9/97), 693 So.2d 1279, 1285. While the workers’ compensation laws are to be construed liberally in favor of the claimant, that interpretation cannot lessen the claimant’s burden. Disability can be proven by medical and lay testimony. Isaac v. Lathan, 01-2639 (La.App. 1 Cir. 11/8/02), 836 So.2d 191, 199. Furthermore, a claimant who is unable to return to work as a result of a mental injury is entitled to TTD benefits. Williams v. Capitol Steel, 93-2154 (La.App. 1 Cir. 10/7/94), 644 So.2d 705, 707.

In order to recover SEBs, a claimant must first prove by a preponderance of the evidence that a work-related injury has resulted in her | ¿inability to earn 90 percent or more of her average pre-injury wage. LSA-R.S. 23:1221(3)(a). Once the claimant’s burden is met, the burden shifts to the employer who, in order to defeat the claimant’s claim for SEBs or establish the claimant’s earning capacity, must prove, by a preponderance of the evidence, that the claimant is physically able to perform a certain job and that the job was offered to the claimant or that the job was available to the claimant in her or the employer’s community or reasonable geographic region. LSA-R.S. 23; 1221(3) (c) (i); Anderson, 915 So.2d at 904.

The factual finding regarding whether a workers’ compensation claimant has met her burden of proving disability and the length thereof must be given great weight and will not be overturned on appeal absent manifest error. Porter v. Gaylord Chemical Corp., 98-0222 (La.App. 1 Cir. 9/25/98), 721 So.2d 27, 30, writ denied, 98-2712 (La.12/18/98), 734 So.2d 638; Gordon, 693 So.2d at 1285. If there is evidence before the WCJ that furnishes a reasonable factual basis for such a finding, the WCJ’s determination of facts will not be disturbed on appeal. Moreover, where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed upon review. Porter, 721 So.2d at 30.

In the instant case, Ms. Sanders testified at length at the trial and by deposition prior to trial. Ms. Sanders admitted that she could physically perform her carpentry construction job again, but she had a problem with working at heights or around bridges. Ms. Sanders acknowledged at trial that she could apply for a job in another field, and she has considered further training for a new job.

15A psychiatrist, Dr. Ann Arretteig, who treated Ms. Sanders for depression and post-traumatic stress disorder, testified by deposition that Ms. Sanders was not a good candidate for returning to work in the same construction career that she had before the incident, because the thought of working construction, especially at heights, triggers anxiety in Ms. Sanders. However, Dr. Arretteig did not rule out any other type of job for Ms. Sanders and specifically testified that it would be a major accomplishment for Ms. Sanders’ therapy if she found a job.

A vocational rehabilitation counselor, Carla D. Seyler, testified at trial regarding available jobs that Ms. Sanders was qualified for and that did not involve working at heights. According to Ms. Seyler, Ms. Sanders was a viable candidate for a construction carpenter job available in October 2004 that did not involve working at heights. Ms. Seyler also conducted a labor market survey and outlined several approved and available jobs that did not involve working at heights or at construction sites, ranging in wages from $7.00 per hour to $9.14 per hour. Ms. Sanders’ pre-injury wages were $9.00 per hour.

The WCJ relied upon the testimony of the vocational rehabilitation expert and of Ms. Sanders herself to conclude that Ms. Sanders’ disability had resolved to the point where she- could have returned to employment on or about October 2004 at a wage rate of at least 90 percent or greater of her average weekly wage at the time of the accident. After having carefully reviewed the medical and expert evidence of record and Ms. Sanders’ lay testimony, we find that the evidence provided a reasonable factual basis for the WCJ to find that Ms. Sanders was entitled to TTD benefits for the thirteen-month period ending in October 2004. At that point, Ms. Sanders 1 fibelieved that she could engage in some form of employment, even construction work if not at heights. There is no evidence that clearly and convincingly suggests otherwise.

In determining whether a claimant has discharged her burden of proof, the trier of fact should accept as true a witness’s uncontradicted testimony, even though the witness is a party, absent circumstances casting suspicion on the reliability of that testimony. Gordon, 693 So .2d at 1286. A WCJ’s determinations of whether a claimant’s testimony is credible and whether she has discharged her burden of proof are factual determinations which will not be disturbed upon review absent manifest error. Id. The WCJ in this case found credible Ms. Sanders’ testimony that she could have returned to some type of work at the time of her deposition in September 2004. Therefore, the WCJ’s ruling that Ms. Sanders was entitled to TTD benefits from the time of the accident until October 2004 was not manifestly erroneous.

Additionally, Ms. Sanders failed to meet her initial burden of proving by a preponderance of the evidence that she could not earn 90 percent or more of her average pre-injury wage. The only evidence that claimant offered to meet her burden is that Dr. Arretteig indicated she should not return to work in the construction industry. This evidence falls short, especially in light of Ms. Sanders’ testimony that she could work at her prior construction job if not at heights. At no time did Dr. Arretteig indicate that Ms. Sanders would be unable to return to full-time work at any job; she only ruled out construction work. However, even assuming that Ms. Sanders met her initial burden of proving entitlement to SEBs (which we do not concede), there is sufficient competent evidence in the record to establish 17that the employer met its burden of defeating Ms. Sanders’ claim for SEBs. As previously discussed, the medical and lay evidence established that Ms. Sanders could work at some job. The vocational rehabilitation counselor’s labor market survey outlined several approved and available non-construction jobs at a wage rate of at least 90 percent or greater of Ms. Sanders’ pre-injury wages. Therefore, based on the evidence and our thorough review of the record, we find that Ms. Sanders failed to prove that she is entitled to SEBs.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ is affirmed. Appeal costs are assessed against claimant-appellant, Dorothy L. Sanders.

AFFIRMED.