text:
    Shannon CAMPBELL v. CITY OF LEESVILLE.
    No. 2007-1061.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Randall B. Reiser, D. Heath Trahan, Reiser Law Firm, P.L.C., Alexandria, Louisiana, for Defendant/Appellant: City of Leesville.
    Maria A. Losavio, Losavio Law Office, L.L.C., Alexandria, Louisiana, for Plaintiff/Appellee: Shannon Campbell.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this workers’ compensation case, the employer is appealing a judgment awarding claimant medical and indemnity benefits and assessing the employer with penalties and attorney fees. The claimant has answered this appeal seeking additional attorney fees for work done on appeal. For the following reasons, we affirm, amend, and render.

FACTS

The claimant, Shannon Campbell (Mr. Campbell), sustained a left ankle injury as the result of a work-related accident on May 24, 2005 during the course and scope of his employment as an inmate supervisor with the City of Leesville (the City). As a result thereof, Mr. Campbell received indemnity benefits of $236.00 per week until August 20, 2006, when said benefits were terminated by the City.

Following his work-related injury, Mr. Campbell was first seen by his family physician, Dr. Loi Vo. Dr. Vo ordered an x-ray and an MRI of Mr. Campbell’s left ankle, both of which were normal. According to Dr. Vo, Mr. Campbell could not return to work from the date of his work-related accident through his referral of Mr. Campbell to Dr. David DeLapp, an orthopedist.

Mr. Campbell was first treated by Dr. DeLapp on August 11, 2005. Dr. DeLapp ordered physical therapy for Mr. Campbell and was of the opinion that he was unable to return to work at that time. On September 13, 2005, Dr. DeLapp requested an EMG nerve conduction study of the left lower extremity and prescribed a right-handed walking cane for Mr. Campbell due to his left ankle instability. Dr. DeLapp’s report of November 13, 2005 states that Mr. Campbell had undergone the EMG by Dr. Michael Dole on October 24, 2005. By November of 2005, Dr. DeLapp ^anticipated that Mr. Campbell would reach maximum medical improvement (MMI) in one month at which time he would obtain a functional capacity evaluation (FCE) and disability rating. Dr. De-Lapp did not release Mr. Campbell to return to work. On December 8, 2005, Dr. DeLapp’s assessment was that Mr. Campbell had reached MMI, and, therefore, he requested the FCE and referred Mr. Campbell to Dr. Dole for chronic pain management.

Mr. Campbell underwent the FCE on January 17, 2006 and was found to be capable of performing light duty work. When Mr. Campbell returned to Dr. De-Lapp on February 21, 2006, he was at MMI; however, Dr. DeLapp felt that Mr. Campbell would continue to live with chronic pain. Dr. DeLapp reiterated that he would like Mr. Campbell to treat with Dr. Dole for chronic pain management, and he requested that a disability rating be obtained. The disability rating was done by Dr. Dole on March 13, 2006, and Mr. Campbell was assigned a thirty percent whole person impairment rating. At that time, Dr. Dole agreed with Dr. De-Lapp that Mr. Campbell was at MMI.

Mr. Campbell returned to see Dr. De-Lapp on March 21, 2006, complaining that he had developed right ankle pain and right shoulder pain from his use of the cane. Dr. DeLapp was of the opinion that “[i]t was more likely than not that the right ankle and right shoulder [pain were] due to the severe left ankle and foot problem[s].... ” He explained that the strain put on his right shoulder with the walking cane probably caused the shoulder problems, and the overuse of the right ankle due to the left ankle injury probably caused the right ankle problems. Dr. De-Lapp, therefore, requested authorization to evaluate Mr. Campbell’s right ankle and right shoulder.

Due to continued and worsening right ankle and right shoulder complaints, Dr. DeLapp’s plan on May 16, 2006 was to obtain an MRI of Mr. Campbell’s right IsShoulder and an MRI of his right ankle. These suggested MRIs were not authorized by the City.

Mr. Campbell saw Dr. Dole for pain management on April 11, 2006. On the return visit of May 8, 2006, Mr. Campbell complained of right ankle and right shoulder pain. Mr. Campbell returned to see Dr. Dole on June 6, 2006. The following day, Dr. Dole had a conference with Lisa Span, the vocational rehabilitation counsel- or. After reviewing Mr. Campbell’s medical treatment, and in light -of his right ankle and right shoulder complaints, on June 7, 2006, Dr. Dole changed his opinion regarding MMI status and opined that Mr. Campbell “would not be at MMI until this was evaluated and addressed.” In Dr. Dole’s opinion, Mr. Campbell was not able to return to work in his original position as inmate supervisor at this time.

Pursuant to the City’s request for a second medical opinion, Mr. Campbell saw Dr. Gordon Mead, an orthopaedic surgeon, on June 28, 2006, complaining of constant left foot and ankle pain, right ankle pain, and right shoulder pain. Dr. Mead opined that Mr. Campbell “may very well have a rotator cuff tear of his right shoulder, but [he was] unable to relate that injury-wise to his left ankle.” Additionally, according to Dr. Mead, “[t]he use of a cane over a prolonged period of time should not cause a rotator cuff tear....” Dr. Mead agreed with the FCE and felt that Mr. Campbell had reached MMI and concluded that no further medical evaluation or treatment was needed.

Mr. Campbell returned to see Dr. Dole on July 3, 2006. On that visit, Dr. Dole opined that although not at MMI, Mr. Campbell was able to return to work in the modified job of a clearing supervisor. Both on August 7, 2006 and August 28, 2006, Dr. Dole maintained his opinion that Mr. Campbell was not at MMI, but he did feel |4that he was capable of performing the sedentary position of clearing supervisor.

Mr. Campbell also continued to treat with Dr. DeLapp. Dr. DeLapp’s July 27, 2006 report documents Mr. Campbell’s complaints of left ankle pain, right shoulder pain, and right ankle pain. Dr. De-Lapp noted that he was “waiting on the MRI of [Mr. Campbell’s] right ankle and right shoulder.” According to Dr. De-Lapp, Mr. Campbell was not at MMI at this time. Dr. DeLapp indicated that Mr. Campbell was “currently unable to return to work at this time due to the fact that he is still pending further evaluation of his right shoulder and ankle with MRIs and[,] therefore, not at maximum medical improvement.” Dr. DeLapp’s opinion remained unchanged after Mr. Campbell’s August 15, 2006 visit. On September 26, 2006, Dr. DeLapp “[c]ontinue[d] to recommend [an] MRI of his right shoulder and right foot” and maintained that Mr. Campbell was “temporarily totally disabled and off work.”

Mr. Campbell followed up with Dr. Dole on October 2, 2006. By this time, he had been terminated by the City for his failure to show up for work as a gas attendant, which was a position that had been approved by Dr. Dole. However, following the October 2, 2006 visit, Dr. Dole changed his opinion and reported that Mr. Campbell was not at MMI and that he had erred in approving the gas attendant position. Dr. Dole noted that he had spoken to Dr. DeLapp and that he now realized that the proper evaluation had not been done “and MRIs need[ed] to be approved and treatment rendered per Dr. DeLapp before Mr. Campbell [could] be placed at MMI.” Dr. Dole explained that once he “had the full picture of what Dr. DeLapp was concerned about and what he was trying to have evaluated and was not allowed to evaluate, because it was never approved, it became apparent that he was ... that [Mr. Campbell] should not have been returned to work prior to this.... ” On October 31, 2006, Dr. Dole maintained that Mr. Campbell was not at MMI and that he was not able to return to |Kwork, even at a sedentary position. On that date, Dr. Dole provided the following explanation:

As far as returning to work goes, I think I was quite clear in my prior letter that after I had extensively reviewed his chart and discussed the case with Dr. DeLapp, it became apparent that his shoulder had not been adequately evaluated and treated. I do consider this to be part of his work-related injury, as does Dr. DeLapp, and this needs to be appropriately evaluated. I think that the FCE has overstated his true abilities. In addition, he will need to have his rotator cuff damage attended to at his right shoulder before we can consider return to work discussions.

As of November 30, 2006, Dr. DeLapp was “still recommend[ing an] MRI of the right shoulder and foot ... to confirm the diagnosis and begin either operative or nonoperative treatment.” Dr. DeLapp noted that Mr. Campbell would “continue to remain temporarily totally disabled until [he] had the ... questions answered.”

Later, on December 12, 2006, Dr. Dole again stated that he “considered] Mr. Campbell to be disabled and unable to return to work” and that he felt the “FCE overstated his true abilities, and his right rotator cuff tendinitis appealed] to be secondary to overuse of the arm due to his ankle sprain.”

Dr. Dole, in his final report of January 10, 2007, reiterated that Mr. Campbell “still needs to have an MRI done of his right shoulder, as recommended by Dr. David DeLapp.” Dr. Dole maintained his opinion that Mr. Campbell was not at MMI. Dr. Dole explained that the original impairment rating which he had given Mr. Campbell in March of 2006 did not take into consideration his right ankle and right shoulder complaints. According to Dr. Dole, “[the impairment rating] would be higher because of his loss of range of motion, but [he] would not be able to do a disability rating until he was at maximum medical improvement for his shoulder, and he [was] not at MMI.... ”

IflAt the request of the City, and pursuant to court authorization and appointment, Mr. Campbell saw Dr. Frazer Gaar on November 13, 2006 for an independent medical evaluation (IME). In his evaluation, Dr. Gaar noted Mr. Campbell’s left ankle sprain, but did not see a need for surgical intervention. Dr. Gaar estimated a six percent whole person impairment rating and felt that Mr. Campbell could return to work with limitations as described in the FCE. He also felt that Mr. Campbell would need ongoing pain management. Dr. Gaar stated that he fully agreed with Dr. Mead’s findings and recommendations.

Mr. Campbell filed a disputed claim for compensation (1008) on June 20, 2006, setting forth several issues in dispute. The issues which remained at trial included the City’s: (1) termination of temporary total disability benefits (TTD); (2) untimely payment of the “week of waiting;” (3) failure to authorize an MRI of the right ankle and an MRI of the right shoulder; (4) failure to timely authorize chronic pain management; and (5) fraud defense pursuant to La.R.S. 23:1208 (1208 defense).

Following a trial on the merits, the workers’ compensation judge (WCJ) ruled that Mr. Campbell was entitled to a reinstatement of TTD from August 20, 2006, the date of termination of said benefits. The WCJ also ruled that the City failed to timely pay Mr. Campbell for the first week of indemnity benefits and assessed a $2,000.00 penalty for the untimely payment of same. The WCJ found that Mr. Campbell’s right ankle and right shoulder injury were causally related to the work-related accident of May 24, 2005 and that the City’s failure to authorize the MRI of the right shoulder was arbitrary and capricious thereby warranting a penalty of $2,000.00. The City’s failure to authorize the MRI of the right ankle was also found to be arbitrary and capricious, and a penalty of $2,000.00 was assessed therefor by the WCJ. It is from this judgment that the City appeals. Mr. Campbell has answered the appeal seeking 17an additional attorney fee award for the work necessitated by the present appeal.

ISSUES

The City presents the following issues for our review:

1. [wjhether the Trial Court erred by imposing two separate $2,000.00 penalties for the failure to authorize one demand for two MRIs[;]
2. [wjhether the Trial Court erred by holding that Appellant’s decision to terminate plaintiffs indemnity benefits was arbitrary and capricious, given that Appellant was armed with the favorable opinions of one of plaintiffs treating physicians and [a second medical opinion] physician at the time indemnity benefits were terminated!;]
3. [w]hether the Trial Court erred by holding that plaintiff proved by a preponderance of the evidence that he was entitled to [temporary total disability benefits] after August 21, 2006, where no testimony or evidence exists that plaintiff was physically incapable of performing work[;]
4. [w]hether the Trial Court erred by holding that the “week of waiting” was untimely paid, where he was paid his full paycheck during said time[; and]
5.[w]hether the Trial Court erred by holding that plaintiff did not forfeit his rights under [La.R.S. 23:1208], considering he failed to disclose to Appellant that he sustained the same injury to his ankle only nine months prior to this incident.

LAW AND DISCUSSION

Failure to authorize MRIs

The City asserts that the WCJ erred in imposing a penalty for its failure to authorize the MRI on Mr. Campbell’s right ankle and an additional penalty for its failure to authorize the MRI on his right shoulder. The City contends that only one demand was made for the two MRIs; accordingly, it concludes that only one penalty can result therefrom. We disagree.

ULouisiana Revised Statutes 23:1201 sets forth an employer’s obligation relative to the payment of medical benefits. Pursuant to La.R.S. 23:1201(E), an employer is required to pay medical benefits “within sixty days after the employer or insurer receives written notice thereof.” The statute further provides for the imposition of penalties for an employer’s failure to comply with the statutory requirement. Louisiana Revised Statutes 23:1201(F) provides that an employer’s “[f]ailure to provide payment ... shall result in the assessment of a penalty ... not to exceed a maximum of two thousand dollars in the aggregate for any claim.” Thus, the .statute expressly provides for the imposition of multiple penalties for multiple statutory violations.

In the instant case, Dr. DeLapp’s May-16, 2006 office note indicates that he wanted to obtain an MRI on Mr. Campbell’s right ankle and right shoulder. On May 25, 2006, demand was made on the City to authorize same. The City denied the request for both the MRI on the right ankle and the right shoulder on August 24, 2006, and it continued to withhold authorization for both MRIs through the date of trial.

The City argues that “the standard governing whether the [WCJ] herein erred in awarding multiple penalties for the denial of a single demand for two MRIs is whether the denial was a ‘single violation.’ ” Fontenot v. Reddell Vidrine Water Dist., 02-439, 02-442, 02-478, p. 27, n. 12 (La.1/14/03), 836 So.2d 14, 27 (quoting Haynes v. Williams, 01-26, p. 26 (La.App. 3 Cir. 7/25/01), 805 So.2d 215, 232). The City notes that “Dr. DeLapp’s recommendation for both MRIs occurred on the same day, was noted on a single office note, and were mentioned in the same sentence.” The City further points out that both the demand for and the denial of the MRIs were done each in a single correspondence. It concludes, therefore, that there was only a single 1 {¡demand constituting a “single violation.”

Louisiana Revised Statutes 23:1201(F) provides for the imposition of multiple penalties for multiple violations. Thus, the question which we are called upon to decide is whether there has been one or more violations of La.R.S. 23:1201. The failure of an employer to authorize or pay for medical treatment is a “failure to provide benefits” which subjects an employer to penalties. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181. In this case, the City failed to authorize a diagnostic test of two different areas of Mr. Campbell’s body, both of which had been requested by Dr. DeLapp. Neither the fact that the requests were made simultaneously nor the fact that the demands were made simultaneously makes the denial of the two MRIs on two separate parts of the body a “single violation.” There is no medical evidence in the record to suggest that one MRI could be done which would cover both the shoulder and the ankle. Therefore, it would take two separate MRIs to cover two separate parts of the body; consequently, the City’s failure to authorize same constitutes two separate violations. As poignantly argued by Mr. Campbell, if this were true, any time requests for more than one medical procedure were combined in a single request or a single demand, a “claimant would then be limited to only one penalty as denial of all of the different medical procedures would be a ‘single violation.’ ” Based upon the facts of this case, we conclude that the WCJ was not manifestly erroneous in imposing two separate $2,000.00 penalties for the City’s failure to authorize two separate and distinct MRIs.

Termination of TTD

The City asserts herein that the trial court erred in ruling that its decision to terminate Mr. Campbell’s TTD was arbitrary and capricious. The City contends that it was not arbitrary and capricious since, “at the time that TTD benefits were 110terminated, both Dr. Dole and Dr. Mead were of the opinion that [Mr. Campbell] was capable of returning to work.” We disagree.

Louisiana Revised Statutes 23:1201(1) sets forth the penalty provision for an employer’s arbitrary and capricious termination of indemnity benefits providing, in pertinent part, as follows:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

“Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Brown v. Texas-LaCartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890.

Initially the City relied on Dr. Dole’s opinion regarding Mr. Campbell’s ability to return to work as grounds for its termination of benefits on August 20, 2006. The City obtained the opinion of Dr. Dole regarding Mr. Campbell’s ability to return to work prior to the termination of benefits, but it did not obtain the approval of Dr. DeLapp prior to termination of same. This is true despite Dr. DeLapp’s report of July 27, 2006 wherein he stated that, in his opinion, Mr. Campbell was not able to return and that he was not at MMI. Thus, in making its decision regarding the termination of benefits, the City did so without consulting with Mr. Campbell’s treating orthopaedic physician who had not found him to be at MMI and who had not released him to return to work. The City did not consult with Dr. DeLapp prior to the termination of benefits, nor did it heed Mr. Campbell’s request that Dr. DeLapp be consulted by the vocational rehabilitation counselor.

Additionally, as discussed in detail above, after the completion of the FCE and h,disability rating, Dr. DeLapp released Mr. Campbell to return to work. However, with the development of new complaints of right ankle and right shoulder pain, Dr. DeLapp rescinded that opinion. Dr. DeLapp was obviously concerned about the new complaints which prompted the request for the MRIs. In Dr. DeLapp’s opinion, the MRIs were necessary for him to properly evaluate Mr. Campbell’s medical condition, and he was unwilling to release Mr. Campbell to return to work absent the diagnostic tests which were never approved by the City. Moreover, we note that when Dr. DeLapp was presented with the gas attendant job for approval on September 26, 2006, he rejected same.

Similarly, although Dr. Dole was initially of the opinion that Mr. Campbell had reached MMI and was capable of returning to light duty work as indicated by the FCE, he subsequently changed his opinion regarding MMI status and Mr. Campbell’s ability to return to work. After discussing Mr. Campbell’s medical condition with Dr. DeLapp in detail and obtaining a “full picture” of his current complaints, Dr. Dole rescinded his earlier opinion and agreed with Dr. DeLapp that Mr. Campbell could not return to work even in a sedentary position. He was also in agreement with Dr. DeLapp as to the necessity of the MRIs. Thus, even accepting the City’s assertion that it reasonably relied upon the opinions of Dr. Dole and Dr. Mead at the time benefits were terminated, thereafter, the City continued to deny Mr. Campbell TTD even after Dr. Dole rescinded his opinion. Thus, despite the opinions of Dr. Dole and Dr. DeLapp that Mr. Campbell was not at MMI and that he was unable to return to work, the City never did resume Mr. Campbell’s TTD.

Although we recognize that Dr. Mead and Dr. Gaar had differing opinions, even these physicians recognized the medical condition of Mr. Campbell relative to his right ankle and right shoulder complaints. Notably, Dr. Gaar’s opinion regarding h?Mr. Campbell’s return to work status was not given until after TTD had already been terminated by the City. Based on the foregoing, we find no manifest error in the WCJ’s determination that the termination of benefits was arbitrary and capricious and that a penalty is warranted therefor. We do, however, find the $8,000.00 penalty, which is the maximum allowed under the statute, to be an abuse of discretion and unwarranted. Considering the differing opinions in this case, we reduce the $8,000.00 penalty assessed by the WCJ for the City’s arbitrary and capricious termination of TTD to $5,000.00.

TTD after August 21, 2006

The City also asserts that Mr. Campbell failed to prove that he was entitled to TTD after August 21, 2006. We find this contention to be without merit.

In order to be entitled to TTD, Mr. Campbell had the burden of proving by clear and convincing evidence that he was unable to engage in any employment as a result of his work-related injury. La.R.S. 23:1221(l)(c). Contrary to the assertions of the City, the record supports the finding that Mr. Campbell continued to be unable to work after August 21, 2006.

Dr. DeLapp consistently maintained this position since the development of the right ankle and right shoulder complaints and his requests for the MRIs. He explained that the MRIs were needed so that a proper evaluation and treatment of the right ankle and the right shoulder could be done. Dr. DeLapp rejected the sedentary position presented for his approval and has continually refused to release Mr. Campbell to return to work. As of November of 2006, Dr. DeLapp reported that Mr. Campbell would “continue to remain temporarily totally disabled until [he] had the ... questions answered.” Given the City’s continued refusal to approve the MRIs, Dr. DeLapp’s opinion was that Mr. Campbell is unable to engage in any employment [ TSas a result of his work-related injury.

Dr. Dole’s opinion was also that Mr. Campbell was not able to return to work. His report of October 31, 2006 set forth, in no uncertain terms, the necessity for the MRIs, without which he would not consider “return to work discussions.” On more than one occasion, Dr. Dole explained his position and strongly urged the City to approve the MRIs as requested. Since the City never authorized the MRIs, Dr. Dole refused to release Mr. Campbell to return to work.

Additionally, any continued reliance by the City on the FCE of January 2007 is unwarranted. In Dr. Dole’s opinion, Mr. Campbell’s abilities were “over-stated” in the FCE. Moreover, Dr. Dole explained that Mr. Campbell subsequently developed right ankle and right shoulder pain which had not yet arisen when the FCE was performed; thus, these medical problems were not even taken into account when the first FCE was performed. According to Dr. Dole, that FCE is no longer applicable.

While we are cognizant of the opinions of Dr. Mead and Dr. Gaar, we cannot say that the finding of the WCJ was manifestly erroneous. Specifically, we note that Dr. Mead admitted that “Mr. Campbell may very well have a rotator cuff tear of his right shoulder.” Consistent therewith, Dr. Gaar noted that his examination of Mr. Campbell was consistent with a rotator cuff injury. Moreover, each physician agreed that an MRI was the diagnostic test needed to make such a determination. Clearly, the WCJ was justified in giving more weight to the opinions of the treating physicians, Dr. Dole and Dr. DeLapp, in making his determination. Spell v. Conn Appliances, Inc., 97-309 (La.App. 3 Cir. 10/8/97), 702 So.2d 797.

Louisiana Revised Statutes 23:1224-“Week of waiting

The City asserts that the WCJ erred in holding that its indemnity payment to 1 uMr. Campbell for the first “week of waiting” was untimely since he was paid his full paycheck during said time. Alternatively, the City argues that La.R.S. 28:1224 sets forth no deadline for the payment to be made. We disagree.

Louisiana Revised Statutes 23:1224 provides that “[n]o compensation shall be paid for the first week after the injury is received; provided, that in cases where disability from injury continues for six weeks or longer after date of the accident, compensation for the first week shall be paid after the first six weeks have elapsed.” The failure of an employer to timely pay this indemnity benefit subjects the employer to a penalty under La.R.S. 2S:1201(F).

Mr. Campbell sustained a work-related injury on May 24, 2005. Therefore, the week of waiting was from May 25, 2005 through May 31, 2005. Although it is undisputed that Mr. Campbell was not paid the indemnity benefit until August 17, 2005, the City asserts that the payment made to Mr. Campbell on June 3, 2005 was timely and was “in an amount more than he was entitled to.”

The record establishes that Mr. Campbell was paid for the ten hours that he actually worked during that time period. The City also paid Mr. Campbell for “sick time” so that this paycheck totaled a full eighty hours and was the same as any other biweekly paycheck that Mr. Campbell received. However, the record also reveals that Mr. Campbell did not ask for his sick time to be paid to him. Mr. Campbell had accumulated his sick time prior to the work-related accident, and he was entitled to the use of same when he deemed it necessary to do so. There is no legal authority for the City to arbitrarily substitute Mr. Campbell’s sick time for its legal obligation to timely pay Mr. Campbell’s workers’ compensation benefits. We, therefore, find that the June 3, 2005 payment made by the City to Mr. Campbell (out of his accumulated sick time) did not constitute a timely payment by the City of the week of waiting | ^compensation benefit pursuant to La.R.S. 23:1224.

The City argues on appeal that La.R.S. 23:1224 contains “no provision that mandates that the week of waiting be paid immediately upon the expiration of the six week period-the only requirement is that it be paid ‘after.’” The City concludes, therefore, that the payment made to Mr. Campbell on August 17, 2005 was in compliance with the statute. We find this contention to be without merit.

As noted by the second circuit, “[t]here is little authority interpreting this statute.” Cloud v. Ringgold Nurse Care Ctr., 34,856, p. 13 (La.App. 2 Cir. 6/20/01), 792 So.2d 812, 819, writ denied, 01-2125 (La.11/2/01), 800 So.2d 878. However, the supreme court has “deemed [a] three-week delay unreasonable without further discussion.” Id. (citing Brown, 721 So.2d 885).

As noted above, the week of waiting in this case was from May 25, 2005 through May 31, 2005. Six weeks thereafter would have been July 5, 2005. It was undisputed that the City did not issue Mr. Campbell’s indemnity benefit for the waiting period until August 17, 2005, approximately twelve weeks after the work-related accident. We find no error in the WCJ’s ruling that such a delay is unreasonable. Accordingly, we affirm the imposition of a $2,000.00 penalty for the City’s untimely payment of the indemnity benefit required by La.R.S. 23:1224.

Forfeiture of benefits under La.R.S. 23:1208

The City also asserts on appeal that the WCJ erred in failing to find that Mr. Campbell had forfeited his rights under La.R.S. 23:1208. We disagree.

| ^Louisiana Revised Statutes 23:1208 governs the parameters for determining if a claimant has committed fraud for the purpose of obtaining workers’ compensation benefits. The applicable sections of that statute read as follows:
§ 1208. Misrepresentations concerning benefit payments; penalty
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

La.R.S. 23:1208.

Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the WCJ finds that all three of “these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced.” Id. at 14.

Jim Walter Homes, Inc. v. Guilbeau, 05-1473, p. 5 (La.App. 3 Cir. 6/21/06), 934 So.2d 239, 243.

In brief, the City notes that Mr. Campbell completed an Identification and Pre-Employment Questionnaire indicating that he had no prior injuries; however, he had sustained an ankle injury on January 8, 2004, when he stepped in a pothole while delivering pizza. The City concludes that Mr. Campbell’s failure to disclose his prior injury should have resulted .in a forfeiture of his benefits pursuant to La.R.S. 23:1208.

On the issue of Mr. Campbell’s forfeiture of benefits, the WCJ stated:

In the evidence presented at trial, I never saw any information that would lead the Court to believe that the employer was making a [La.R.S.] 23:1208 claim. The arguments presented by the employer in |17[b]rief really addressed only a situation of failure to give appropriate information on a Post-hire Medical Questionnaire which is a [La.R.S.] 23:1208.1 [defense], but if, in fact, [La. R.S.] 23:1208 were asserted, it would be denied as well. The only thing I can assume would be the basis of the [La. R.S.] 23:1208 [defense] is that when Mr. Campbell saw any of his physicians, he failed to disclose these past medical conditions.
It has been previously noted that the medical conditions of the past don’t show any significant injury that Mr. Campbell had sustained on any of those incidents involved. Moreover, Mr. Campbell is not required to recite with mathematical precision his past medical history.

Mr. Campbell explained that he failed to indicate that an accident had occurred while he was delivering pizza since he had fully recovered from same. He interpreted the information sought relative to an “injury” as something that was continuing to cause him medical problems. In light of his full recovery, he did not include this incident when completing the form. Based upon the record, we find no manifest error in the finding of the WCJ that the City failed to establish the requisite elements of a 1208 defense. Accordingly, the judgment of the WCJ rejecting the City’s fraud defense pursuant to La.R.S. 1208 is affirmed.

Answer to Appeal

An answer to appeal was filed by Mr. Campbell wherein he sought an increase in the attorney fee award as a result of the work necessitated by the City’s appeal. Accordingly, we award an additional $2,500.00 in attorney fees for the work necessitated by the present appeal.

DECREE

For the foregoing reasons, the judgment of the WCJ is affirmed except for the $8,000.00 penalty assessed against the City for its arbitrary and capricious termination of TTD benefits which is reduced to $5,000.00. Additionally, judgment is rendered in favor of Shannon Campbell in the amount of $2,500.00 in additional attorney fees for the work necessitated by the present appeal.

11RCosts of this appeal are assessed against the City of Leesville.

AFFIRMED AS AMENDED AND RENDERED.

      . Dr. Michael Dole is a board certified physician in both physical medicine and rehabilitation and internal medicine.

      . We note that demand for the MRIs was made on more than one occasion. Likewise, authorization was denied on more than one occasion. The issue, however, is not whether penalties -are warranted for each time the demand was made; rather, the issue is whether demand for the MRI of Mr. Campbell's right shoulder and demand for the MRI of Mr. Campbell’s right ankle constitute one demand.

      . Although the City cites La.R.S. 23:1208 in its assignment of error, its brief also refers to La.R.S. 23:1208.1 which provides, in pertinent part, as follows:
      Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury fund.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Ella ROGERS, et al. v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 07-1060.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.

      Charles S. Norris, Jr., Attorney at Law, Vidalia, Louisiana, for Plaintiffs/Appellees, Ella Rogers, Michael Jones.
    J. Albert Ellis, Assistant Attorneys General, Louisiana Department of Justice, Alexandria, Louisiana, for Defendants/Appellants, State of Louisiana, through the Department of Public Safety and Corrections Louisiana State Police, John C. Nelson.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

11 Defendants, the State of Louisiana, through the Department of Public Safety and Corrections (LDPSC), and Louisiana State Trooper John C. Nelson (Trooper Nelson), appeal a judgment rendered in favor of Plaintiffs, Ella Rogers and Michael Jones, following a trial on the merits. For the following reasons, we affirm.

ISSUE

The question that we must answer is whether the immunity provisions of the Louisiana Homeland Security and Emergency Assistance and Disaster Act and/or the statute granting immunity to the State and its employees for operational activities conducted in the aftermath of Hurricane Katrina are properly classified as affirmative defenses. If so, we must affirm the trial court’s refusal to allow Defendants to rely on the immunities because they did not timely assert the affirmative defenses. If not, we must consider Plaintiffs’ assertion that the conduct of Trooper Nelson rose to the level of gross negligence or willful misconduct, thus triggering exceptions to the claimed immunities.

FACTS AND PROCEDURAL HISTORY

Plaintiffs were injured on September 8, 2005, in Concordia Parish, Louisiana, when the vehicle in which they were traveling was rear-ended by a vehicle being driven by Trooper Nelson when he fell asleep at the wheel. Plaintiffs filed suit against the LDPSC and Trooper Nelson on August 9, 2006. Defendants answered the suit on September 14, 2006, denying liability. Upon motion of Plaintiffs in 12September of 2006, a scheduling conference was held at which time the matter was set for bench trial on April 5, 2007, with a backup date of April 19, 2007.

On April 5, 2007, Defendants filed a “Motion for Summary Judgment Urging Exception of No Cause of Action and Exception of No Right of Action.” Defendants asserted that they were absolutely immune from liability, pursuant to La.R.S. 29:735 and La.R.S. 9:2800.17, because the accident which injured Plaintiffs took place while Trooper Nelson was fulfilling emergency response activities pursuant to the State of Emergency declared by Louisiana Governor Kathleen Blanco following Hurricane Katrina. See Gubernatorial Proclamation No. 48 KBB 2005. Defendants’ motion was set for contradictory hearing on April 16, 2007.

Plaintiffs responded with a motion to strike affirmative defenses, pursuant to La.Code Civ.P. art. 964, on the grounds that Defendants should not be allowed to disguise affirmative defenses as exceptions, so as to avoid La.Code Civ.P. art. 2005’s requirement that affirmative defenses shall be set forth in the answer. To allow Defendants to assert affirmative defenses at such a late date and on the eve of trial, Plaintiffs argued, would amount to trial by ambush. The trial court set Plaintiffs’ motion for hearing on April 16, 2007 as well. In the meantime, Plaintiffs filed an opposition to Defendants’ motion for summary judgment.

Following the April 16, 2007 hearing, the trial court issued a written judgment granting Plaintiffs’ motion to strike affirmative defenses and denying as moot Defendants’ motion for summary judgment urging exceptions. Defendants filed a | snotice of intent to apply for writ of review of the April 16, 2007 judgment, but according to the record, no writ was ever sought.

Trial on the merits took place on April 19, 2007. Prior to the start of the trial, Defendants filed a motion for leave to file an amended answer setting forth their claims of immunity pursuant to La.R.S. 29:735 and La.R.S. 9:2800.17, which the trial court promptly denied. Nevertheless, Defendants were allowed to proffer their motion and amended answer. After Plaintiffs had presented their evidence and rested their case, Defendants filed an exception of no right of action, again claiming immunity pursuant to the aforementioned statutes. The trial court denied the exception of no right of action in open court. It then stated that it had found liability on the part of the State, and the parties were given ten days to submit memoranda on damages.

Written judgment was rendered on May 24, 2007. Ella Rogers was awarded $9,016.86 in medical special damages and $25,000.00 in general damages. Michael Jones was awarded $10,480.00 in medical special damages, $5,016.95 in lost wages, and $25,000.00 in general damages. Defendants timely filed a motion for suspen-sive appeal of the May 24, 2007 judgment.

In their sole assignment of error, Defendants assert that the trial court erred in denying their peremptory exception of no right of action where there was no evidence in the record establishing that plaintiffs possessed a right of action in light of a specific statute denying plaintiffs such an action.

JjDISCUSSION

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 844.

“An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiffs demand on its merits.” Webster v. Rushing, 316 So.2d 111, 114 (La.1975). The defendant’s answer shall set forth all affirmative defenses. La.Code Civ.P. arts. 1003 and 1005. “In the absence of inclusion of an affirmative defense in the answer, evidence can be adduced thereon only in the absence of an objection thereto.” Red Barn Chems., Inc. v. Lassalle, 350 So.2d 1315, 1317 (La.App. 3 Cir.1977).

As this court previously noted in Rider v. Fontenot, 463 So.2d 951, 956 (La.App. 3 Cir.1985), cited with approval in Patterson v. State, 95-1668 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, units denied, 97-27, 97-108 (La.2/21/97), 688 So.2d 513:

The policy behind the requirement that affirmative defenses be raised in answer is sensible and laudable. Because affirmative defenses raise matters for judicial resolution outside of issues raised by plaintiffs petition, plaintiff must be made aware of these matters at an early stage so that plaintiff can prepare an opposition to the defense and adjust his case, if necessary, in light of the new facts and issues raised by the affirmative defense. If the affirmative defense is allowed despite the defense not being raised in answer, the result is a surprise “trial by ambush” that unfairly aids the defendant, who knew about the defense even though plaintiff was kept in ignorance of the defense.

|Jn Molina v. City of New Orleans, 01-1411 (La.App. 4 Cir. 10/2/02), 830 So.2d 994, writ denied, 03-156 (La.3/28/03), 840 So.2d 573, the fourth circuit classified immunity as an affirmative defense which must be specifically pleaded in the defendant’s answer and thus concluded that the trial court was within its discretion in refusing to allow the assertion of a new defense one day before trial, as the defense clearly was not timely asserted. Similarly, this court concluded that the trial court did not err in precluding a defendant from presenting evidence of affirmative defenses where the defendant had failed to specifically plead these defenses, as required by La.Code Civ.P. art. 1005, until after commencement of the trial and without first obtaining leave of court. Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97), 696 So.2d 196.

Defendants claim that the immunities granted in La.R.S. 29:735 and La.R.S. 9:2800.17 are “absolute and without exception,” unless Trooper Nelson’s having fallen asleep at the wheel is found to constitute gross negligence or willful misconduct, which would void the protection of immunity offered in those statutes. They further submit that Trooper Nelson’s actions do not rise to such a level.

Plaintiffs counter that the trial court was correct in characterizing the immunities provided in the statutes at issue as being affirmative defenses and in granting their motion to strike affirmative defenses. Plaintiffs point out that the |fiDefendants failed to raise the defenses until two weeks prior to trial and, when they finally did so, they attempted to disguise the defenses as exceptions and included them in a motion for summary judgment. They submit that Defendants were simply resubmitting the previously denied arguments when they reasserted the exception of no right of action at trial after the close of Plaintiffs’ evidence and that the trial court properly rejected the rehashed arguments.

We begin our analysis by examining the statutes at issue. Louisiana Revised Statutes 29:735(A)(1), entitled “Immunity of personnel,” is part of the Louisiana Homeland Security and Emergency Assistance and Disaster Act and provides as follows:

Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents’ employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.

Louisiana Revised Statutes 9:2800.17(A)(1), entitled “Immunity of state and political subdivisions; operational activities related to Hurricanes Katrina and Rita,” provides as follows:

The state, or any political subdivision thereof, or any public entity, meaning and including the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and their agents, employees, contractors, volunteers, or representatives engaged in any operational decisions or activities in the aftermath of Hurricanes Katrina and Rita shall not be civilly liable for the death of, or any injury to, any person or damage to property as a result of such activity, except in the event of gross negligence or willful misconduct.

We are convinced that the trial court correctly characterized the immunity defenses urged by Defendants as affirmative defenses because if the defenses were |7to apply Plaintiffs’ claims would be defeated on the merits. Our finding is bolstered by the fact that Defendants specifically pled the affirmative defense of immunity pursuant to La.R.S. 9:2798.1 in their original answer to Plaintiffs’ petition. Given the fact that Defendants urged the additional immunity defenses at such a late date, coupled with Plaintiffs immediate objection, the trial court did not err in granting the motion to strike and not allowing Defendants to rely on the immunity statutes to defeat Plaintiffs’ claims. Likewise, the trial court did not err in denying Defendants’ exception of no right of action, which essentially amounted to a reassertion of the affirmative defenses that the trial court had stricken just three days prior to trial. Having so ruled, we need not determine whether Trooper Nelson’s having fallen asleep at the wheel and striking the vehicle in which Plaintiffs were traveling amounted to gross negligence or willful misconduct.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Defendants are cast with all costs of this appeal.

AFFIRMED.

      . In their answer, Defendants asserted the limitations of liability for suits against the State as to damages and legal interest provided in La.R.S. 13:5106 and La.R.S. 13:5112, as well as the affirmative defense of immunity from liability for employees of public entities performing discretionaiy acts during the course and scope of their employment pursuant to La.R.S. 9:2798.1.

      . It appears that the motions argued on April 16, 2007, were heard by Judge Brackin, who was sitting Pro Tempore. The judgment disposing of the motions was signed by Judge Brackin and the trial judge mentioned in the trial transcript that an Ad Hoc judge had ruled on the prior motions.

      . We note that this judgment did not reflect the court's having denied Defendants’ exception of no right of action on May 24, 2007, and apparently no other written judgment to that effect has been rendered.

      . The statute at issue in Molina was La.R.S. 9:2798.1 which concerns the policymaking or discretionary acts or omissions of public entities or their officers or employees. See also White v. City of New Orleans, 00-2683, (La. App. 4 Cir. 1/9/01), 806 So.2d 675.

      . But see Zulli v. Coregis Ins. Co., 05-155 (La.App. 5 Cir. 7/26/05), 910 So.2d 437, writ denied, 05-2226 (La.2/17/06), 924 So.2d 1017 (where the fifth circuit held that the immunities found in La.R.S. 9:2791 and La.R.S. 9:2795 were affirmative defenses which needed to be specifically pled, but nonetheless concluded that the trial court did not abuse its discretion in allowing the defendants to amend their answer to assert the affirmative defenses that had been raised in a motion for summary judgment filed less than three weeks before the trial date).

      . Defendants do not cite any jurisprudence in support of this sweeping proposition.


text:
    In re Elijah HERRING.
    No. 07-1087.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 2008.
    Rehearing Denied Feb. 27, 2008.
    Willie Hunter, Jr., Attorney at Law, Monroe, LA, for Appellant, Elijah Herring.

      Nicholas Gachassin, Jr., Brandon K. Stelly, Gachassin Law Firm, Lafayette, LA, for Appellee, Lafayette General Medical Center.
    Marc W. Judice, Judice & Adley, Lafayette, LA, for Appellee, Dr. James Garcel-on.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

hEIijah Herring appeals the trial court’s dismissal of his medical malpractice claim. For the following reasons, we affirm.

Facts

On June 27, 2006, Mr. Herring filed a medical malpractice complaint against two health care providers as provided in La. R.S. 40:1299.47. By letter dated July 6 and mailed July 7, the Patient’s Compensation Fund (PCF) confirmed receipt of the complaint and notified Mr. Herring that he had forty-five days to remit filing fees in the amount of $200. On September 7, the PCF mailed a letter to Mr. Herring and the two defendants, notifying them that Mr. Herring had failed to timely pay the filing fee and that his complaint “is no longer considered filed by this office.” On September 18, Mr. Herring filed another complaint with the PCF and included the $200 filing fee. Thereafter, one of the defendants filed an exception of prescription with the trial court. After a hearing, the trial court granted the exception of prescription. The second defendant then filed an exception of prescription, which the trial court also granted. Mr. Herring appeals.

Assignments of Error

Mr. Herring urges that the trial court erred in finding that the payment of filing fees was not merely an incidental requirement which related back to the filing of his complaint and did not affect the running of prescription, that the PCF’s dismissal of his complaint was not legally correct or authorized by law, and that the filing of his complaint prior to the prescriptive date allowed him additional time within which to pay the filing fee.

19Piscussion

Louisiana law requires that medical malpractice claims be filed within one year of the alleged malpractice or discovery of the malpractice but no later than three years after the malpractice. La.R.S. 9:5628. All medical malpractice complaints against qualified health care providers must be reviewed by a medical review panel before suit can be instituted against them. La.R.S. 40:1299.47(A). The medical review panel procedure is initiated by filing a complaint with the PCF. Id. After receipt of a complaint, the PCF has fifteen days to confirm receipt of the complaint and notify the claimant of the filing fee required, the time frame within which the filing fee must be paid,, that failure to pay the filing fee timely renders a request for review “invalid and without effect,” and that such invalid request “shall not suspend the time within which suit must be instituted.” La.R.S. 40:1299.47(A)(3). The claimant then has forty-five days “from the mailing date of the confirmation of the receipt of the request for review” to pay the filing fee. La.R.S. 40:1299.47(A)(l)(e). If the claimant fails to pay the filing fee within the forty-five-day period provided in subsection (l)(c), the request for review is “invalid and without effect” and does “not suspend time within which suit must be instituted.” La.R.S. 40:1299.47(A)(1)(e). The PCF must notify the claimant and all defendants if the filing fee is not paid within the forty-five-day period provided in subsection (l)(c). La. R.S. 40:1299.47(A)(4)(d).

Mr. Herring does not deny that he did not mail and that the division of administration did not receive the required $200 filing fee within the forty-five days provided in subsection (A)(1)(c). Instead, he argues that the application of other legal principles to the facts of this case establishes that the trial court’s grant of the exception of prescription is erroneous.

IsIs the Payment of the Filing Fee Incidental?

Mr. Herring first argues that payment of the filing fee is “incidental”' to the filing of his complaint and relates back to the date his complaint was filed. However, as explained in Medical Review Panel of Davis v. Louisiana State University Health Sciences Center-Shreveport, 41,-273, p. 6 (La.App. 2 Cir. 8/25/06), 939 So.2d 539, 543, writ denied, 06-2343 (La.12/8/06), 943 So.2d 1092, “both the filing of the complaint and the payment of the fee are inexorably joined. The complaint is not considered to be filed until the fee is paid.” La.R.S. 40.T299.47(A)(l)(e). Therefore, payment of the filing fee is not “incidental,” and the complaint is not considered filed if the filing fee is not paid timely. This argument is without merit.

Is Failure to Timely Pay Filing Fee a Defect?

Mr. Herring also contends that he should be given an opportunity to amend his complaint to cure any “defect” in it, citing La.Code Civ.P. art. 934. Article 934 provides that a petitioner must be allowed to amend his petition to remove the ground of a peremptory exception if it is possible to do so. The failure to file the filing fee as required by the statute cánnot be “removed” by an amendment to the complaint. Medical Review Panel of Davis, 939 So.2d 539. Furthermore, because the complaint’s request for review was “invalid and without effect,” La.R.S. 40:1299.47(A)(l)(e), there is nothing to which an amendment can relate back.

Citing Hall v. Reber, 03-1482 (La.App. 3 Cir. 3/31/04), 870 So.2d 424, writ denied, 04-1012 (La.6/18/04), 876 So.2d 809, Mr. Herring urges that his failure to timely pay the filing fee did not render the filing of his complaint invalid. In Hall, the plaintiff filed his complaint by facsimile transmission as provided in La.R.S. 13:850. He then submitted a check in the amount of $175 within the time period ^provided in La.R.S. 13:850; however, the check was $125 less than the amount the clerk of court required to file and “process” the suit. This court determined that because the $175 check was sufficient to pay the filing fee of $150 and the $5 facsimile filing fee, the case had not prescribed, even though the check did not include the $125 required for service of process on the defendants. Hall has no application to the facts of this case, as Mr. Herring did not submit any of the fee required by La.R.S. 40:1299.47(A)(l)(c).

PCF Director’s Authority

The PCF director’s September 6 letter stated in part: “We did not receive the fifing fee from you, thus you have failed to comply within the time allowed; thus, the above-cited case is no longer considered filed by this office.” Mr. Herring contends the PCF director was “without authority to dismiss his complaint.” This argument has no application here because the PCF director did not dismiss Mr. Herring’s claims. The trial court dismissed his claims pursuant to exceptions of prescription filed by the defendants. Further, the PCF director’s letter merely restates the content of La.R.S. 40:1299.47(A)(l)(e).

Suspension of Time

In his June 27, 2006 complaint, Mr. Herring acknowledged that he became aware of Defendants’ malpractice on August 17, 2005. He asserts that because he filed his complaint prior to the lapse of one year from the date the alleged malpractice occurred, he had the time remaining in the one-year period to pay the filing fee.

This argument is based upon the supreme court’s holdings in Guitreau v. Kucharchuk, 99-2570 (La.5/16/00), 763 So.2d 575, and LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226. In LeBreton, the supreme court held that the filing of La medical malpractice complaint suspends prescription and prevents prescription from lapsing during the pendency of the medical review panel process until ninety days following notification of the medical review panel’s opinion. In Guitreau, 763 So.2d at 576, the supreme court held “that when the ninety-day period of suspension after the decision of the medical review panel is completed, plaintiffs in medical malpractice actions are entitled to count the period of time, under La.R.S. 9:5628, that remains unused at the time the request for a medical review panel is filed.” These cases deal with the ninety-day filing period applicable to claims that were properly filed and considered by a medical review panel. They are not applicable here because Mr. Herring’s claims were not considered by a medical review panel.

The clear language of subsection La.R.S. 40.T299.47(A)(l)(e) negates the application of this argument here, as it provides that failure to timely pay filing fees renders a complaint’s request for review “invalid and without effect” and that such an invalid request does “not suspend time within which suit must be instituted.” Mr. Herring’s complaint had no effect because he failed to pay his filing fee as required by La.R.S. 40:1299.47(A)(l)(c). Therefore, it did not suspend the time within which suit had to be instituted, and there was no time remaining which allowed him to pay the filing fee more than forty-five days after the PCF’s September 6 letter was mailed. La.R.S. 40:1299.47(A)(l)(e).

Disposition

The judgment of the trial court is affirmed. All costs are assessed to Elijah Herring.

AFFIRMED.


author: ROBERTS, J., for the Court.

text:
    Quentin BESSENT, Appellant v. Eric CLARK, et al., Appellees.
    No. 2005-CP-01083-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2007.
    Rehearing Denied Jan. 15, 2008.
    See also 808 So.2d 979.

      Quentin Bessent, appellant, pro se.
    Office of the Attorney General by John L. Clay, attorneys for appellees.

      Before MYERS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. A jury sitting before the Rankin County Circuit Court found Quentin Bes-sent guilty of possession of cocaine with intent to distribute. The circuit court sentenced Bessent to twenty-five years in the custody of the Mississippi Department of Corrections. Bessent filed a direct appeal, but this Court affirmed the circuit court.

¶ 2. Having had no success with his direct appeal, Bessent switched tactics. Bessent filed a “Bill of Complaint” in the Hinds County Chancery Court and sued Eric Clark and 4,999 unnamed individuals. By his complaint, Bessent hinted at a conspiracy against all U.S. citizens. Bessent also hinted at allegations of trespass, “special assumpsit,” breach of contract, and false imprisonment. Additionally, Bessent alleged that the various State officials infringed upon his constitutional rights in violation of 42 U.S.C. Section 1983. The chancery court ultimately dismissed Bes-sent’s complaint pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Bessent appeals and submits that the chancellor erred when he dismissed his claims. Finding a lack of jurisdiction, we dismiss Bessent’s appeal.

FACTS AND PROCEDURAL HISTORY

¶ 3. On May 24, 1999, Bessent was convicted of possession of cocaine with intent to distribute. Bessent filed a direct appeal to this Court, but we found no error and affirmed his conviction. Bessent v. State, 808 So.2d 979 (Miss.App.2001). Bessent did not file a petition for a writ of certiora-ri with the Mississippi Supreme Court. He did, however, file an unsuccessful petition for a writ of certiorari with the Supreme Court of the United States.

¶ 4. On October 4, 2002, Bessent filed a pro se complaint in the Hinds County Chancery Court. Bessent sued the Mississippi Secretary of State and 4,999 unidentified defendants. By way of his complaint, Bessent alleged causes of action for trespass, “special assumpsit,” breach of contract, and false imprisonment.

¶ 5. On November 15, 2002, Bessent filed a document titled, “Notice to Amend, Notice of Claim.” Bessent sought to amend his previous complaint to add thirty-three defendants — all of whom were either a federal or state official, including the U.S. Attorney General, the Clerk of the U.S. Supreme Court, U.S. Marshals, the Governor of Mississippi, the Governor of Florida, and the Mississippi Attorney General. The record contains no indication that Bes-sent served any named defendant with process.

¶ 6. On January 15, 2003, Bessent filed a document titled “Chapter VII. Judgment. Notice and Demand for Judgment by Default.” Next, on February 10, 2005, Bes-sent filed a “Notice of Claim to Secretary of State.” Nothing else appears in the record until March 30, 2005. At that time, Erie Clark, the Mississippi Secretary of State, filed a motion for leave to answer and/or otherwise respond to Bessent’s complaint. The chancellor granted Clark’s motion the very next day.

¶ 7. On April 29, 2005, Clark filed a motion to dismiss pursuant to M.R.C.P. 12(b)(6). On May 13, 2005, the chancellor granted Clark’s motion to dismiss. Bes-sent filed a response to Clark’s motion to dismiss on May 17, 2005, and again on May 26, 2005. Bessent appeals.

¶ 8. Before we address Bessent’s issues on appeal, we must address another matter. By way of his complaint, Bessent sought (a) freedom from incarceration and (b) damages of one million dollars from each of the five thousand defendants. It is also important to note that the named defendants were all officials and employees of either Mississippi, Florida, or the United States. To the extent that Bessent sought his freedom through a collateral attack on his conviction, his complaint must be viewed as an action under the Post-Conviction Collateral Relief Act. Miss.Code Ann. § 99-39-1 et seq. (Rev. 2000). To the extent that Bessent sought damages against state entities, officials, and employees, his complaint must be viewed as an action under the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-1 (Rev.2002).

¶ 9. Keeping this in mind, it bears mentioning that the chancellor granted Bessent’s motion to appeal in forma pau-peris. To the extent that Bessent’s complaint sought post-conviction collateral relief, there is no error in that decision. “A final judgment entered under [the Post-Conviction Collateral Relief Act] may be reviewed by the supreme court of Mississippi on appeal brought ... by the prisoner ... on such terms and conditions as are provided for in criminal cases.” Miss.Code Ann. § 99-39-25(1) (Rev.2000). M.R.A.P. 6(a) provides for criminal appeals informa pauperis: A defendant in a criminal case in a trial court who desires to proceed on appeal ... in forma pauperis shall file in the trial court a motion for leave so to proceed, together with an affidavit showing the defendant’s inability to pay fees and costs. If the motion is granted, the defendant may so proceed without further application to the Supreme Court and without prepayment of fees or costs in either court.

¶ 10. However, to the extent that Bessent’s complaint sought relief under the Mississippi Tort Claims Act, there is a much different result. The record contains a transcript of the hearing by which the chancellor granted Bessent leave to proceed with his civil appeal informa pau-peris. During that hearing Bessent presented no authority that would grant him the right to proceed with a civil appeal in forma pauperis. There is a simple explanation for his lack of authority; to the extent that Bessent sought damages against state entities and employees, there is none. As mentioned, Rule 6(a) of the Mississippi Rules of Appellate Procedure addresses in forma pauperis appeals incident to criminal actions, but that rule does not provide for such appeals incident to civil actions.

¶ 11. Pursuant to Miss.Code Ann. § 47-5-76(1) (Rev.2004), under limited circumstances, the Mississippi Department of Corrections must pay court costs for an inmate who brings a civil action against a department employee. However, that civil action must pertain to the inmate’s condition of confinement. Id. Bessent’s lawsuit did not pertain to a condition of his confinement. As such, Bessent was not eligible to proceed in forma pauperis by way of Section 47-5-76(1). What is more, Section 47-5-76 only applies at the trial level and not at the appellate level. Carson v. Hargett, 689 So.2d 753, 755 (Miss.1996). Pursuant to Miss.Code Ann. § 11-53-17, “A citizen may commence any civil action ... in any court without being required to prepay fees or give security for costs before or after commencing suit by taking and subscribing” a statutorily proscribed affidavit. However, the supreme court has held that Section 11-53-17 “authorizes in forma pauperis proceeding in civil cases at the trial level only.” Nelson v. Bank of Mississippi, 498 So.2d 365 (Miss.1986). See also Slaydon v. Hansford, 830 So.2d 686, 689(¶ 8) (Miss.Ct.App.2002) (“The right to proceed in forma pauperis in civil cases does not extend beyond the initial trial of the matter”)

¶ 12. Bessent never should have been allowed to appeal his claims under the Mississippi Tort Claims Act in forma pau-peris. The citizens of Hinds County are now unduly obligated to pay Bessent’s court costs incident to his claim for damages.

STANDARD OF REVIEW

¶ 13. A motion for dismissal under Mississippi Rules Civil Procedure 12(b)(6) raises an issue of law. Ott v. Mitchell, 792 So.2d 332, 334(¶ 5) (Miss.Ct.App.2001). This Court conducts de novo review on questions of law. Id. When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that plaintiff will be unable to prove any set of facts in support of his claims. Id.

ANALYSIS

I. DID THE CHANCELLOR ERR WHEN HE DISMISSED BES-SENT’S COMPLAINT?

¶ 14. Bessent claims the chancellor erred when he dismissed his pro se complaint. As was his complaint, Bes-sent’s brief is inartfully drafted. “[W]here a prisoner is proceeding pro se, we will take that into account and, in our discretion, credit not so well pleaded allegations so that a prisoner’s meritorious complaint may not be lost because inartfully drafted.” Ivy v. Merchant, 666 So.2d 445, 449 (Miss.1995). We have done our best to determine the nature of Bessent’s claims. However, we are also mindful that “pro se parties should be held to the same rules of procedure and substantive law as represented parties.”, Id.

¶ 15. As mentioned, in his complaint, Bessent alleged multiple causes of action, but he sought two basic remedies: (a) his freedom from incarceration and (b) damages. As such, Bessent’s suit may be viewed in two separate lights. In some aspects, Bessent sought post-conviction collateral relief. In other aspects, Bessent sought damages against government entities and employees. Finally, there is a third aspect to Bessent’s complaint, as he alleged a cause of action pursuant to 42 U.S.C. Section 1983. We will address each of the three aspects of Bessent’s complaint separately.

A. Post-Conviction Collateral Relief

¶ 16. Bessent filed a direct appeal of his criminal conviction. This Court affirmed. Bessent did not file a writ of certiorari with the Mississippi Supreme Court. Instead, Bessent filed an unsuccessful writ of certiorari with the United States Supreme Court.

¶ 17. Bessent then filed his complaint in the chancery court. Based on theories of some unnamed breached contract, Bessent sought the restoration of his freedom. To the extent that Bessent’s complaint was a collateral attack on his criminal conviction, Bessent should have sought relief by way of the Mississippi Uniform Post-Conviction Collateral Relief Act. Pursuant to Miss.Code Ann. § 99-39-5 (Rev.2006):

(1) Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims:
(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(g) That ... he is otherwise unlawfully held in custody; [or]
(i) That the conviction or sentence is otherwise subject to collateral attack upon the grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy; may file a motion to vacate, set aside or correct the judgment or sentence, or for an out-of-time appeal.

¶ 18. Further, “Where the conviction and sentence have been affirmed on appeal ..., the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court of Mississippi, ... and an order granted allowing the filing of such motion in the trial court.” Miss.Code Ann. § 99-89-7 (Supp. 2006). Because this Court affirmed Bes-sent’s conviction on direct appeal, Section 99-39-7 mandated that Bessent obtain permission from the supreme court to seek post-conviction relief from the trial court. E.g., Doss v. State, 757 So.2d 1016, 1017(¶ 6) (Miss.Ct.App.2000). “This procedure is not merely advisory, but jurisdictional.” Id.

¶ 19. Bessent failed to obtain the requisite permission from the supreme court. As such, the chancery court lacked jurisdiction to entertain Bessent’s collateral attacks and this Court lacks jurisdiction to entertain Bessent’s appeal. Id. at (¶ 7). Accordingly, we dismiss Bessent’s appeal for lack of jurisdiction.

¶ 20. It bears mentioning that Article 6, Section 162 of the Mississippi Constitution mandates that “All causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court.” However, the supreme court, rather than the circuit court, has jurisdiction over a post-conviction petition when the supreme court last exercised jurisdiction in the case. See Evans v. State, 485 So.2d 276 (Miss.1986). In any event, it is of no moment that the chancery court declined to transfer Bessent’s petition to the proper court, as Bessent’s petition would ultimately be dismissed for failure to obtain permission.

B. Mississippi Tort Claims Act

¶ 21. Besides his request for post-conviction collateral relief, Bessent also sought damages from multiple government officials and employees. Bessent should have filed his complaint under the Mississippi Tort Claims Act. Pursuant to Miss. Code Ann. § ll-46-9(l)(m) (Rev.2002):

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... [o]f any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed[.]

This statute provides immunity to government entities and employees from claims of incarcerated individuals. Whitt v. Gordon, 872 So.2d 71 (¶ 8) (Miss.2004).

¶ 22. Bessent was incarcerated when he filed his complaint against numerous governmental entities and employees. Those governmental entities and employees are immune from Bessent’s lawsuit. See Powell v. Clay County Bd. of Supervisors, 924 So.2d 523, 526(¶ 6) (Miss.2006). As such, the chancellor was correct when he dismissed Bessent’s complaint.

C. Bessent’s Claim Pursuant to 42 U.S.C. § 1983.

¶ 23. By way of his complaint, Bessent alleged that Mississippi governmental entities and employees deprived him of his constitutional rights and, as such, he brought a cause of action pursuant to 42 U.S.C. Section 1983. State courts have concurrent jurisdiction over 42 U.S.C. Section 1983 claims, so we may address this portion of Bessent’s complaint. Carter v. Miss. Dep’t. of Corr., 860 So.2d 1187(¶ 19) (Miss.2003).

¶ 24. An action challenging a conviction under section 1983 is most analogous to the common law action for malicious prosecution. Heck v. Humphrey, 512 U.S. 477, 479, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court recognized that to permit a convicted criminal defendant to pursue a section 1983 action would constitute an unwarranted collateral attack on an outstanding state criminal judgment, unless the conviction had been reversed or invalidated through a state appeal. Id. Specifically, the court in Heck held that:

in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

Id. at 487,114 S.Ct. 2364.

¶ 25. Bessent’s conviction has not been reversed, expunged, or otherwise invalidated. Accordingly, Bessent cannot sue the various named governmental officials based on the constitutionality of his arrest pursuant to section 1983. See Ott v. Mitchell, 792 So.2d 332, 334(¶ 7) (Miss.Ct.App.2001). As in Ott, this Court affirmed Bessent’s conviction on direct appeal. As such, Bessent’s claim is barred by Heck.

D. Sanction for Frivolous Appeal

¶ 26. The chancellor dismissed Bessent’s lawsuit for failure to state a claim upon which relief may be granted. When an inmate files a lawsuit, while in the custody of the Mississippi Department of Corrections, and that lawsuit is subsequently dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, that inmate faces a sanction. Miss.Code Ann. § 47-5-138 (Rev.2004). To be precise, after one such lawsuit, “the department shall forfeit ... [sjixty (60) days of an inmate’s accrued earned time.” Miss.Code Ann. § 47-5-138(b)(i). The chancellor did not apply Section 47-5-138, but, the statute does not limit such a finding to a trial court. Instead, it mentions a final order of “a state court.” Miss.Code Ann. § 47-5-138(3)(a).

¶ 27. The chancellor dismissed Bessent’s complaint pursuant to M.R.C.P. 12(b)(6) for failure to state a claim upon which relief may be granted. After a de novo review, we affirm. Not only that, we find that, as with his action in the chancery court, Bessent’s appeal is frivolous. There is a three-part test involved in determining whether a case brought in forma pauperis should be dismissed as frivolous: (1) does the complaint have a realistic chance of success; (2) does it present an arguably sound basis in fact and law; and (3) can the complainant prove any set of facts that would warrant relief. Dock v. State, 802 So.2d 1051, 1056(¶ 11) (Miss.2001). Bessent’s complaint never had a realistic chance of success, it failed to present an arguably sound basis in fact or law, and Bessent could not prove any set of facts that would warrant relief. “Sections 47 — 6—138(3)(a) and (b) are fully applicable against pro se litigants who seek post-conviction relief.” Id. By this opinion, the Mississippi Department of Corrections shall apply the provisions of Section 47-5-138(b)(i) regarding forfeiture of sixty days of Bessent’s earned time release, if he has any.

¶ 28. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. A CERTIFIED COPY OF THIS ORDER SHALL BE ISSUED TO THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR APPROPRIATE SANCTIONS PURSUANT TO MISSISSIPPI CODE ANNOTATED SECTION 47-5-138 (REV.2004). ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.


author: ROBERTS, J., for the Court. KING, C.J.,

text:
    James Odell McLAMB, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00496-COA.
    Court of Appeals of Mississippi.
    Jan. 29, 2008.

      James Odell McLamb, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. Incident to his 1981 conviction by the Coahoma County Circuit Court for armed robbery and his sentence as a habitual offender, James Odell McLamb filed a pro se Emergency Motion for State Ha-beas Corpus in the Rankin County Circuit Court. The circuit court treated McLamb’s motion as a petition for post-conviction collateral relief and dismissed McLamb’s motion for lack of jurisdiction. McLamb appeals, claiming that because his two prior convictions occurred before the post-conviction collateral relief act was written into law, his sentence as a habitual offender is impermissible as an ex post facto law. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 19, 1981, a jury sitting before the Coahoma County Circuit Court found McLamb guilty of armed robbery. The circuit court found that McLamb was a habitual offender pursuant to Section 99-19-83 of the Mississippi Code Annotated and sentenced McLamb to life imprisonment. McLamb v. State, 410 So.2d 1318 (Miss.1982) (McLamb I). On direct appeal, the Mississippi Supreme Court affirmed McLamb’s conviction and sentence. Id. at 1320.

¶ 3. McLamb then filed a pro se motion to vacate the habitual offender portion of his sentence, which was denied by the circuit court. However, on appeal, the Mississippi Supreme Court found that because neither of McLamb’s two prior felonies were “violent” felonies, McLamb should have been sentenced as a habitual offender pursuant to Section 99-19-81 of the Mississippi Code. McLamb v. State, 456 So.2d 743, 746 (Miss.1984) (McLamb II). Therefore, the supreme court granted McLamb’s motion for leave to file motion to vacate the habitual offender portion of his sentence as set forth by Section 99-19-83.

¶ 4. As best we can tell, McLamb’s sentence was reduced from life imprisonment to thirty-three years. We derive this conclusion from two sources: (1) a statement in McLamb’s brief and (2) a case reported as McLamb v. State, 490 So.2d 912 (Miss.1986) (McLamb III). According to McLamb’s brief, “[o]n May 7, 1985 the circuit court sentenced McLamb to thirty-three years without parole.” In McLamb III, the opinion portion of that case simply says “AFFIRMED” and nothing more. Id. It appears that McLamb III is in the nature of a per curiam affirmance. The most likely set of events is that, after the supreme court’s decision in McLamb II, the circuit court reduced McLamb’s sentence from life imprisonment to thirty-three years, and McLamb then appealed that decision, thus giving rise to the supreme court’s decision in McLamb III. We discuss this for clarity’s sake only, but we do not find that this occurred as a matter of fact.

¶ 5. In any event, McLamb continued to seek post-conviction collateral relief. In his brief, McLamb states, “On June 13, 1988, McLamb filed numerous post-conviction motions in which this Honorable Court denied relief on December 27,1990.” The record does not contain any of those “numerous post-conviction motions” or any reported case in which this Court or the Mississippi Supreme Court denied relief.

¶ 6. On October 16, 2006, McLamb filed the document that would eventually give rise to his current appeal. McLamb filed a pro se document styled as an Emergency Motion for State Habeas Corpus in the Rankin County Circuit Court. By that document, McLamb challenged his 1981 conviction on the basis that his prior convictions occurred before the habitual offender act existed. That is, McLamb claimed he could not be found to be a habitual offender incident to convictions from 1965 and 1970 because the habitual offender act was not written into law until 1977. McLamb suggested that his sentence as a section 99-19-81 habitual offender was improper pursuant to the constitutional prohibition against ex post facto laws.

¶7. The Rankin County Circuit Court dismissed McLamb’s “emergency motion” because it did “not have venue jurisdiction in this matter for the reason that the Respondent is the State of Mississippi Department of Corrections which is a State agency whose primary office is located in Hinds County, Mississippi.” Aggrieved, McLamb appeals.

STANDARD OF REVIEW

¶ 8. In reviewing a circuit court’s decision to deny a motion for post-conviction collateral relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Boyd v. State, 926 So.2d 233, 234 (¶2) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED WHEN IT DISMISSED MCLAMB’S EMERGENCY MOTION FOR STATE HABEAS CORPUS.

¶ 9. The circuit court correctly treated McLamb’s motion as a petition for post-conviction collateral relief. McLamb claims the circuit court erred when it dismissed his Emergency Motion for State Habeas Corpus. We disagree. McLamb’s appeal must be dismissed for multiple reasons.

¶ 10. For one, McLamb’s petition is time-barred. McLamb claims his sentence is a violation of the prohibition against ex post facto laws. Miss. Const., art. 3, § 16. “Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims ... [t]hat the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi” may petition for post-conviction relief. Miss.Code Ann. § 99-39-5(l)(a) (Rev.2007). “A motion for relief under this article shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi....” Miss.Code Ann. § 99-39-5(2) (Rev.2007).

¶ 11. The Mississippi Supreme Court ruled on McLamb’s direct appeal in McLamb I. The Mississippi Supreme Court handed down McLamb I in 1982. McLamb, 410 So.2d at 1318. Therefore, McLamb’s time to raise this issue expired in 1985. Moreover, nothing would have prevented McLamb from arguing the merits of his appeal, as the habitual offender statutes predated the conviction for which he was sentenced as a habitual offender. What McLamb claims to be an ex post facto law was written into law in 1977. McLamb was convicted in 1981. McLamb certainly could have raised this issue within the three-year statute of limitations.

¶ 12. Secondly, McLamb’s argument is barred pursuant to the prohibition against successive writs. Miss.Code Ann. § 99-39-3(2) (Rev.2007). The Mississippi Supreme Court decided McLamb’s first collateral action in McLamb II. As a result, McLamb’s sentence was reduced from life imprisonment, as a Section 99-19-83 habitual offender, to thirty-three years, as a Section 99-19-81 habitual offender. Af-terwards, McLamb filed another appeal in McLamb III, but the resulting opinion does not state just what the issues were. In any event, by McLamb’s own description, he admitted that, afterwards, he filed “numerous post-conviction motions in which this Honorable Court denied relief on December 27,1990.”

¶ 13. Not only is McLamb’s motion time-barred and barred by the prohibition against successive writs, he is also barred because he failed to obtain the Mississippi Supreme Court’s permission before he filed his petition. “Where the conviction and sentence have been affirmed on appeal ... the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court of Mississippi.” Miss.Code Ann. § 99-39-7 (Rev.2007). The record does not indicate that McLamb requested the supreme court’s permission or that the supreme court ever granted permission for McLamb to seek post-conviction relief.

¶ 14. Finally, even if we ignored the procedural requirement discussed directly above, McLamb filed his motion in the wrong circuit court. “The motion under this article shall be filed as an original civil action in the trial court” Id. (emphasis added). Stated differently, one who seeks post-conviction relief must file his petition in the circuit court in which he was convicted. McLamb was convicted in the Coahoma County Circuit Court. He improperly filed his emergency motion for state habeas corpus in the Rankin County Circuit Court. For this and the other reasons stated above, we find that McLamb’s petition is procedurally barred. Accordingly, we dismiss McLamb’s appeal.

¶ 15. Assuming, for the sake of argument, that McLamb’s appeal is not barred for all the reasons detailed above, McLamb’s argument would still fail on its merits. McLamb contends that his sentence as a habitual offender is impermissible because it is prohibited by constitutional guarantees that prohibit punishment by ex post facto laws. According to McLamb, because the two underlying convictions that gave rise to his sentence as a habitual offender occurred prior to the enactment of the habitual offender act, he cannot be sentenced as a habitual offender without being submitted to an ex post facto law.

¶ 16. The Mississippi Supreme Court resolved this precise issue in Smith v. State, 465 So.2d 999 (Miss.1985). The appellant in Smith argued that application of Mississippi Code Annotated section 99-19-81 constituted an ex post facto law because his prior convictions occurred before January 1, 1977, the date section 99-19-81 became effective. The Mississippi Supreme Court rejected that argument and noted: “[T]he sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Id. at 1003 (quoting Branning v. State, 224 So.2d 579, 580-81 (Miss.1969)).

¶ 17. Before we conclude, we must discuss sanctions. When an inmate in the custody of the Mississippi Department of Corrections files a lawsuit that is subsequently dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, that inmate faces a sanction. Miss.Code Ann. § 47-5-138(3) (Supp.2007). To be precise, after one such lawsuit, “the department shall forfeit ... [sjixty (60) days of an inmate’s accrued earned time[.]” Miss.Code Ann. § 47-5-138(3)(b)(i). The circuit court did not sanction McLamb pursuant to Section 47-5-138(3), but the statute does not limit such a finding to a trial court. The statute contemplates a final order of “a state ... court.” Miss.Code Ann. § 47-5-138(3)(a).

¶ 18. The circuit court dismissed McLamb’s motion because it was filed in the wrong court. We agree that McLamb’s motion should have been dismissed for that reason and for many others. McLamb’s appeal is frivolous. There is a three-part test involved in determining whether a case brought in forma pauperis should be dismissed as frivolous: (1) whether it has a realistic chance of success; (2) whether it presents an arguably sound basis in fact and law; and (3) whether the proponent can prove any set of facts that would warrant relief. Dock v. State, 802 So.2d 1051, 1056(1111) (Miss.2001). McLamb’s motion never had a realistic chance of success. It was time-barred, barred as a successive writ, barred because he failed to seek the requisite permission to file, and it was filed in the wrong court. Not only that, McLamb failed to present an arguably sound basis for his argument in fact or law. McLamb could not prove any set of facts that would warrant relief.

¶ 19. “Sections 47-5-138(3)(a) and (b) are fully applicable against pro se litigants who seek post-conviction relief.” Id. Despite McLamb’s obvious candidacy for sanctions, such an order would have no real effect. McLamb was sentenced as a section 99-19-81 habitual offender. As such, his sentence can “not be reduced or suspended nor shall such person be eligible for parole or probation.” Miss.Code Ann. § 99-19-81 (Rev.2007). Therefore, McLamb has no earned time subject to sanction. McLamb should be aware that:

An inmate shall not bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis if the prisoner has, on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

Miss.Code Ann. § 47-5-76(1) (Supp.2007). MeLamb stated that he filed “numerous post-conviction motions” on June 13, 1988. The record does not contain any indication of the resolution of those “numerous post-conviction motions.” Regardless of the resolution of the post-conviction motions at issue, by this opinion, MeLamb now has at least one case resolved as contemplated by section 47-5-76(1).

¶ 20. Further, the Mississippi Supreme Court has sanctioned pro se litigants proceeding in forma pauperis. In Ivy v. State, 688 So.2d 223, 224 (Miss.1997), a pro se litigant filed petitions for a writ of mandamus in the wrong court. The supreme court found that Ivy filed an objectively frivolous filing and that he had filed similarly frivolous petitions in the past. Id. As a result, the supreme court dismissed Ivy’s petitions, sanctioned Ivy $250, and prohibited Ivy from filing any further petitions in forma pauperis, unless and until, he either paid the $250 sanction or received the supreme court’s permission. Id. MeLamb should be aware of these potential outcomes in the event that he considers filing additional actions in the future.

¶ 21. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. KING, C.J., SPECIALLY CONCURS WITH SEPARATE OPINION.

KING, C.J.,

Specially Concurring:

I concur with the majority opinion in so far as it affirms the dismissal of McLamb’s request for post-conviction relief.

      . The Mississippi Uniform Post-Conviction Collateral Relief Act “abolishes the common law writs relating to post-conviction collateral relief, including ... post-conviction habeas corpus [and] statutory post-conviction habeas corpus." Miss.Code Ann. § 99-39-3(1) (Rev. 2007); Grubb v. State, 584 So.2d 786, 788 (Miss.1991).