author: DECUIR, Judge. PICKETT, J.,

text:
    Patsy Ann Collins DOMINGUE, et al. v. EXCALIBAR MINERALS OF LOUISIANA, LLC, et al.
    No. 2005-1018.
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 2006.
    Rehearing Denied Sept. 13, 2006.

      J. Louis Gibbens, Dennis Stevens, Gib-bens & Stevens, New Iberia, LA, Cole A. Wist, Willa Perlmutter, Marci Fulton, Patton, Boggs, LLP, Denver, CO, for Plaintiffs/Appellees, Patsy Ann Collins Do-mingue, et al.

      Ralph E. Kraft, F. Douglas Gatz, Jr., Jessica A. Devitt, Preis, Kraft & Roy, Lafayette, LA, for Defendani/Appellant, Ca-meco Industries, Inc.
    Kirk Lindsay Landry, Keogh, Cox & Wilson, Baton Rouge, LA, for Interve-nor/Appellee, Valley Forge Insurance Company.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, ELIZABETH A. PICKETT, and BILLY H. EZELL, Judges.
   DECUIR, Judge.

hln the workplace accident giving rise to this lawsuit, the plaintiffs’ decedent was run over by a dump truck operated by his co-employee. The manufacturer of the dump truck, Cameco Industries, Inc., appeals the judgment of the trial court granting the plaintiffs’ motion for judgment notwithstanding the verdict and finding Cameco 30% at fault in causing the accident. For the reasons which follow, we affirm the JNOV and deny both the plaintiffs’ and the intervenor’s answer to appeal.

FACTS

The decedent, Russell Domingue, was killed in an industrial accident on the afternoon of June 14, 2000. Mr. Domingue and two other employees of M. Matt Du-rand, Inc. (MMD), Charles Judice and Brent Gonsoulin, were stockpiling barite ore at a mine site operated by Excalibar Minerals of Louisiana, L.L.C. and located at the Port of Iberia. MMD was a contractor hired by Excalibar to offload the ore. Judice and Gonsoulin were operating Cameco 405-B articulated dump trucks (ADTs) to offload the ore from a barge and transport it to a pile being built up by Mr. Domingue with a bulldozer. The two ADTs would make several trips, passing each other on the way to and from the barge and the stockpile where they would drop their loads. Mr. Domingue would then push the barite onto the growing pile of ore.

Sometime after 2:00 p.m., Gonsoulin, who was new to the job, had trouble dumping a large load of barite. Mr. Domingue, who was an experienced ADT operator, got off the bulldozer and walked over to Gonsoulin’s ADT to give his co-worker some advice on how to dump the heavy load. If a load was too heavy, the bed of the dump truck would not go up without some assistance. Mr. Domingue instructed Gonsoulin to back toward the pile, hit the brakes, and pull the lever. Gonsoulin explained in his testimony, “The velocity of it’s going to make the dump Lpull up.” This maneuver should be done repeatedly until the bed goes up and the load can be dumped.

While this conversation between Mr. Do-mingue and Gonsoulin took place, Judice continued on to the stockpile to dump another load. As he finished dumping his load, he turned his truck away from the pile and started to pull forward. Judice testified that he then saw “a pair of sunglasses and cigarettes fly.” Judice immediately stopped his truck and discovered Mr. Domingue’s body which he had run over.

TRIAL COURT PROCEEDINGS

Plaintiffs are the widow and major children of the decedent: Patsy Ann Collins Domingue, individually, and as the admin-istratrix of the estate of Russell Do-mingue and the natural tutrix of the minors, Adam, Elaine, and Rusty Domingue; Crystal L. Domingue; Chantelle Do-mingue Theriot; Angela S. Domingue; and Theresa Marie Domingue. The widow and her seven children brought suit against Cameeo, alleging defects in the manufacture of the ADT which caused Mr. Domingue’s death. Also named as defendant was Excalibar Minerals, which settled with the plaintiffs prior to trial and is no longer a party to this litigation. Valley Forge Insurance Company, the workers’ compensation carrier for Mr. Do-mingue’s employer, intervened seeking reimbursement for benefits paid on behalf of MMD. The case was tried to a twelve-person jury over five days. The verdict form submitted to the jury instructed the jury to assess fault among the following: Mr. Domingue; his co-worker, Judice; his employer, MMD; the lessor of the ADT, Barras & Durand, Inc.; the manufacturer of the ADT, Cameeo; and the mine operator, Excalibar.

laThe jury found MMD 60% at fault in causing the death of Mr. Domingue. The jury also found the decedent was 35% at fault and Judice was 5% at fault. Barras & Durand, Cameeo, and Excalibar were absolved of any liability. Damages were set at $1,101,050.00. The plaintiffs moved for judgment notwithstanding the verdict, which was granted by the trial court, reallocating fault as follows: Judice, 35%; Mr. Domingue, 35%; Cameeo, 30%; and no fault on the part of MMD, Barras & Du-rand, and Excalibar. The judgment also gave Valley Forge a credit against the plaintiffs’ award.

Cameeo appeals the judgment of the trial court, seeking reinstatement of the jury verdict. The plaintiffs answered the appeal, arguing the 35% fault allocated to Judice should have been allocated to Ca-meco and the 35% fault allocated to the decedent should be reduced. Valley Forge also answered the appeal seeking to have this court “precisely state the dollar amount rendered in [its] favor,” and award “additional recovery against the Defendants for any workers’ compensation payments made between the date of the trial and the rendition of Judgment.”

ANALYSIS

The law applicable to this case was recently reviewed by this court in Williams v. W.O. Moss Regional Medical Center, 05-022, pp. 2-3 (La.App. 3 Cir. 6/1/05), 903 So.2d 1150, 1152:

Louisiana Code of Civil Procedure Article 1811(F) is the authority for a JNOV. The article provides that a motion for JNOV may be granted on the issue of liability or on the issue of damages or on both. In Smith v. Lee, 00-1079, pp. 2-3 (La.App. 5 Cir. 4/11/01), 783 So.2d 642, 644, writ denied, 01-1731 (La.9/28/01), 798 So.2d 116, the court noted:
A judgment notwithstanding the verdict is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary |4verdict. The motion should be granted when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences of factual questions should be resolved in favor of the non-moving party. See Anderson v. New Orleans Public Services[Service], Inc., 583 So.2d 829 (La.1991), LSA-C.C.P. art. 1811 and Davis v. Wal-Mart Stores, Inc., 00-445[,] 774 So.2d 84 (La.11/28/00).
The standard of review for a JNOV on appeal is a two part inquiry: first, the appellate court must determine if the trial court erred in granting the JNOV, which is done by using the same criteria used by the trial judge in deciding whether to grant the motion. Second, after determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Martin v. Heritage Manor South Nursing Home, 00-1023 (La.4/3/01), 784 So.2d 627.

Accordingly, our first inquiry is whether the trial court erred in granting the JNOV.

For the following reasons, our review of the record convinces us that the trial court correctly granted the plaintiffs’ motion for JNOV. In apportioning fault, the jury regarded the employer as primarily at fault. The employer’s fault was not based on vicarious liability for the actions of its employee, since the employee was listed separately on the verdict form. Rather, the employer’s fault as found by the jury was independent of the fault of Judice. The employer’s fault, if it is to be construed as knowledge of the ADT’s hazards, existed in isolation, without regard for the conduct of the ADT manufacturer or the mine site operator. The trial court could not reconcile these findings, and in granting the motion for JNOV, the court determined, as was stated in Gibson v. Bossier City General Hospital, 594 So.2d 1332, 1336 (La.App. 2 Cir.1991), that “there was no valid line of reasoning and permissible inferences which could possibly lead rational men and women to the conclusion reached by the jury.”

As did the trial court, we have reviewed the evidence to determine if the record supports a finding of 60% fault on the part of the employer. Because of the workers’ compensation scheme, the employer cannot be found liable in tort to the plaintiffs and was not a party to this litigation or represented at trial. Consequently, evidence of MMD’s actions was minimal. There was no evidence that MMD, a contractor at the mine site, was primarily responsible for safety at the site. There was insufficient evidence that additional employees at the site or further training of employees would have prevented this accident. Suggestions that MMD had knowledge of the ADT’s significant blind spot, as well as other alleged design defects, necessarily implicates the manufacturer of the ADT, not its lessee. Finally, the proposition that MMD or Barras & Durand may have made modifications to the ADT, or may not have properly maintained it, were not causally linked to the accident which caused Mr. Do-mingue’s death. Accordingly, in considering the plaintiffs’ motion for JNOV, the trial court properly determined the evidence did not support a finding of the employer’s 60% fault. Our review of the record convinces us that the trial court correctly granted the plaintiffs’ motion for JNOV.

We turn now to the trial court’s reapportionment of fault. Both the plaintiffs and Cameco presented a wealth of expert testimony regarding the issue of Cameco’s alleged fault. The history and design of the 405-B ADT, including its advantages and shortcomings, were discussed at length. Essentially, the testimony and evidence presented by the plaintiffs’ witnesses, 0. Peter Smith, H. John Head, and Michael USutton, support the conclusion that Cameco shared the fault for Mr. Domingue’s death. Conversely, while the testimony and evidence presented by Cameco’s expert witnesses implicated both the decedent and his co-worker in causing the accident, their testimony did not exonerate Cameco.

Evidence of Cameco’s liability, as found by the trial judge in granting the JNOV, is so strong and overwhelming that reasonable persons could not have found otherwise. The trial court found “the expert testimony presented by Mike Sutton and Peter Smith demonstrated that the blind spot on the 405B truck was caused by a [design defect] and was a proximate cause of Domingue’s death.” The trial court found the blind spot was exceptionally large, causing a driver to be unable to see, at all, a person of Domingue’s height in the location of the accident. The court also found the design defect which causes the blind spot was not necessary to the functioning of the truck and could have been easily modified at minimal cost. Finally, the trial court explained that the driver’s ability to articulate the truck in such a way so as to alleviate the blind spot is irrelevant in a situation such as this where the driver was already in the process of turning when the danger arose.

These factual conclusions are not manifestly erroneous and are supported by the evidence before us. Cameco acknowledged an “area of restricted visibility” for the driver of its ADT, an area much greater than that calculated for the truck used as a model for the design of the 405-B. Evidence of the blind spot was clear and showed that a person of the decedent’s height could not be seen by the driver until he was more than sixteen feet in front of the truck. He could not be seen from head to toe until he was standing over fifty-two feet in front of the truck. The configuration of the truck which created the blind spot was not necessary for the proper functioning |7of the truck, and, in fact, design modifications costing about $5,000.00 could have eliminated or greatly reduced the blind spot. Finally, the unre-futed testimony of the plaintiffs’ accident reconstruction expert showed that the design defect of a significant forward blind spot was a direct cause of the accident at issue. The trial court considered this evidence and determined Cameco was 30% at fault in causing the accident which resulted in Mr. Domingue’s death. We find no manifest error in this conclusion.

In two additional assignments of error, Cameco questions the trial court’s exclusion of certain expert testimony of which the plaintiffs had no knowledge until after they had rested their case, and Cameco complains of improper communication between the trial judge and the jury following the verdict. We have reviewed the record and find no manifest error in the actions of the trial court.

We now address the plaintiffs’ answer to appeal wherein they seek to have the percentage of fault attributed to Mr. Domingue reduced or eliminated. The record establishes that Mr. Domingue was an experienced heavy machinery operator. He had extensive experience in the operation of the 405-B ADT and, in fact, had operated one the week before this tragic accident. As the bulldozer operator at the Excalibar site, Mr. Domingue was responsible for building up the stockpile of barite ore and, thus, to a large extent determined the pathway used by the ADTs between the barge and the stockpile. He was also responsible for the placement of the bulldozer at the time of the accident. His placement of the bulldozer, in close proximity to the stockpile, necessitated that the operators of the ADTs make sharp right hand turns after dropping their loads in order to return to the barge for more barite ore. When Mr. Domingue left his bulldozer to assist Gonsoulin, he knew he was placing himself | sin an area of danger. As an experienced ADT operator, he was well acquainted with the characteristics of the 405-B, including the areas of restricted visibility.

In reviewing the fact finder’s allocation of fault, we are guided by the following standard of review:

The applicable standard of review regarding the factual consideration of respective degrees of fault is the manifest

error or clearly wrong standard. Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), 666 So.2d 607. This well-known standard prohibits an appellate court from altering a fact finder’s determinations, unless those determinations and findings have been found to be clearly wrong upon review of the trial court record. While applying this standard, great deference must be given to the fact finder’s results; however, the appellate court is required to simultaneously remain mindful of its constitutional duty to review the facts. La. Const. art. 5, §§ 5(C), 10(B); Clement, 666 So.2d 607; Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. In doing so, should it be determined that the record supports a finding that the fact finder was clearly wrong or that it abused its wide discretion, this court is empowered to reallocate fault. Clement, 666 So.2d 607. The deference we continue to owe to the fact finder, however, restrains us in any such reallocation, in that we are allowed to adjust fault only to the extent of lowering or raising it to the highest or lowest point, respectively, which would have been reasonably within the jury’s discretion. Id.

Yellott v. Underwriters Ins. Co., 04-1342, p. 12 (La.App. 3 Cir. 8/31/05), 915 So.2d 917, 926, writ denied, 05-2439 (La.4/24/06), 926 So.2d 540. Considering all the facts— Mr. Domingue’s experience, his familiarity with the 405-B ADT, that he determined the path of the ADTs by his manipulation of the ore pile and his placement of the bulldozer, and that he placed himself in a location of known danger- — we cannot say that the jury’s allocation of 35% comparative fault is manifestly erroneous. Accordingly, the plaintiffs’ answer to the appeal is denied.

We also deny the answer to appeal filed by Valley Forge, the workers’ compensation intervenor. As an appellate court, we cannot take new evidence but may properly consider only evidence and testimony which is part of the record [ 9submitted from the trial court. We find insufficient evidence in the record to allow us to render a money judgment in favor of Valley Forge reflecting the amount of benefits paid prior and subsequent to the judgment rendered herein. A final determination of what credit is due Valley Forge can be made only by the trial court.

For the above and foregoing reasons, the judgment notwithstanding the verdict issued by the trial court is affirmed. Costs of this appeal are assessed to Came-co Industries, Inc.

AFFIRMED.

PICKETT, J., dissents and assigns written reasons.

EZELL, J., dissents for the reasons assigned by Judge PICKETT.

PICKETT, J.,

dissenting.

hi respectfully dissent. A thorough review of the record leads to the conclusion that the trial court erred in granting the Motion for JNOV.

The majority correctly cites jurisprudence which sets forth the standard to be applied when determining whether a JNOV is appropriate. In the matter before us, however, the evidence does not point so strongly in favor of the moving party that reasonable men could not reach different conclusions. In fact, there was ample evidence before the jury to support its verdict.

The jury in this case attributed 60% of the fault in causing Mr. Domingue’s death to his employer, MMD, 5% to Charles Judice, the driver of the ADT which ran over Mr. Domingue, and 35% to Mr. Do-mingue. The jury found Cameco to be free from fault, finding no design defect in the ADT involved in the accident. Since the trial judge’s JNOV reversed the jury’s finding on the issue of Cameco’s fault, and Cameco is the lone appellant, our sole inquiry should be whether the evidence points so strongly in favor of finding Ca-meco at fault that reasonable men could not reach a different conclusion. Our jurisprudence tells us that a mere preponderance of evidence in favor of the mover is insufficient. In order for the JNOV to be properly | ¡.granted, the facts and inferences must be so strongly and overwhelmingly in favor of finding Cameco at fault that reasonable men could not have found otherwise. If, however, reasonable persons, in the exercise of impartial judgment, could have found Cameco free from fault, then it was error for the trial court to grant the motion and this court further errs by affirming the trial court’s judgment.

My review of the record convinces me that the trial judge erred in granting the plaintiffs’ motion for JNOV. While the testimony and evidence presented by plaintiffs’ witnesses 0. Peter Smith, H. John Head and Michael Sutton do in fact support a finding that Cameco shared the fault for Mr. Domingue’s death, unlike the majority, I find the testimony and evidence presented by Cameco’s witnesses, Ronald Adams, Ken Rodrigue, and Ronald Brass, exonerated Cameco. The fact that the jury obviously chose to accept the testimony of the Cameco witnesses does not, as the majority seems to believe, make them unreasonable.

Mr. Ronald Adams, who owned his own contracting business, testified that in the mid-1980s he was using DJB articulated dump trucks, touted by the plaintiffs’ 0. Peter Smith for their superior visibility. Mr. Adams stated that he was dissatisfied with the DJBs because of their short, narrow wheel base which caused oscillation, road rutting and instability. He testified that, when attempting to turn corners with a fully loaded DJB, the vehicle had a tendency to turn over. He further explained that the short wheel base would cause the rear tires to fall into the same ruts the front tires had just vacated, thus tearing up the roadway and causing the vehicle to oscillate. Because of his dissatisfaction with the DJB and his positive experience with Cameco 405-B tractors, he approached Cameco and asked if they could modify their 405-B tractor to accept a dump truck bed. He explained that he was interested in a stable | avehicle with a large “foot print” and a longer wheel base than the DJB. Cameco agreed to take on the project and converted three 405-B tractors to 405-B articulated dump trucks (hereafter ADTs or 405-Bs). The Cameco ADTs had dual tires on each side of its axles, both front and rear, giving it a large foot print. This large foot print increased its stability and decreased the amount of load placed on each tire. This not only allowed the vehicle to carry heavy loads but also increased the life of the tires. Mr. Adams was so impressed with the performance of the 405-Bs that the next year he ordered three more of the vehicles. He testified that he used those six machines from the mid-80s until he went out of business and auctioned them off in 1999. He stated that during that time none of the vehicles turned over or became involved in any accident because of poor operator visibility. When the ADTs were auctioned in 1999, they were equipped with large rear-view mirrors mounted on the roof on each side of the cab where the operator sat.

Ken Rodrigue, who started at Cameco, retired from John Deere (who acquired Cameco) as President of Cameco Industries. Mr. Rodrigue was one of the founders of Cameco and was serving as Executive Vice President of Production and Engineering at the time John Deere acquired the company. Mr. Rodrigue was Vice President of Production and Engineering at Cameco when the 405-B ADT was conceived and manufactured and was responsible for modification of the 405-B tractor into the 405-B ADT. He stated that Mr. Adams had purchased some 405-B tractors to use with some Cameco 12-C scrapers, was impressed with the tractors and inquired about the possibility of Ca-meco producing a 405-B ADT. Mr. Adams took Mr. Rodrigue to a building site, showed him the DJBs they were using and explained the problems he was having with the DJBs — tearing up the haul roads, getting stuck, |4and the biggest problem, turning over. Cameco then designed and built the 405-B ADT to overcome the problems Mr. Adams was having with the DJBs. Hence, the longer and wider wheel base and the dual tires front and rear. Mr Rodrigue testified that Ca-meco equipped the ADTs with dual outside mirrors to permit the operator to see as much as possible and used hydrostatic power steering to make the ADT as easy to handle as possible.

The plaintiffs’ experts were of the opinion that the dual front tires were unnecessary and were a design defect and a safety hazard as they decreased visibility and increased the turning radius of the 405-B. When queried about the necessity of dual front tires, Mr. Rodrigue explained that the ADT had to be designed to operate over different types of terrain. He stated that on soft ground, the dual front tires were necessary to provide sufficient “flotation” or ground pressure which he defined as “the force imposed ... by the weight of the vehicle through the tire to the ground ... usually measured in pounds per square inch.” Insufficient flotation would cause the ADT to sink into soft ground, increasing rolling resistance thus making the machine inefficient. He also testified that on hilly terrain, the combined weight of the vehicle and its load would be principally on the rear axle and tires while going uphill, but would then shift to the front axle and tires when going downhill, i.e., weight distribution was not static, but a function of the grade which the ADT was traversing. Finally, he stated that, the dual tires front and rear, increased the ADTs footprint, greatly adding to its stability, thereby making it almost impossible to turn over.

The plaintiffs’ claim that the vehicle was defective in design because of poor visibility due to the dual tires and a long hood. Mr. Rodrigue testified that the vehicle came equipped with large rear view mirrors mounted on the outside-top of the cab. |BHe explained that Cameco was aware of some limited visibility to the direct front of the ADT and included a warning in the manual which came with the vehicle that before proceeding, “make sure you have sufficient room to maneuver and the area is clear of personnel.” “[A] product is not unreasonably dangerous or defectively designed where the evidence shows that the product can be safely used if the instructions in the operations manual are followed.” Delphen v. Dep’t of Transp. and Dev., 94-1261, p. 8 (La.App. 4 Cir. 5/24/95), 657 So.2d 328, 334, writs denied, 95-2116, 95-2124 (La.11/17/95), 663 So.2d 716, 717. He went on to say that, to increase visibility, a driver could stand up and/or look around the side or simply articulate the ADT to either side to see any area in which his visibility was restricted.

The defense’s final witness was Mr. Ronald Brass, a retired John Deere engineering specialist who now owns his own consulting firm. He also addressed the plaintiffs’ allegations of design defects. As to the dual tires, he explained that not only do they greatly increase stability, but they provide the vehicle with superior flotation characteristics. Mr. Brass stated that on a hard surface it takes approximately forty pounds of force per ton of a vehicle to over-come rolling resistance. Accordingly, if you wanted to push an automobile which weighed 4,000 pounds or two tons, you would have to apply eighty pounds of effort to move the car across a hard surface. He explained that on a soft surface, like mud or sand, the force required increases quickly and may reach 400-500 pounds per ton. He testified another advantage of dual tires is the increased useful life of the tires. He noted that industrial tires are quite expensive and that most tire failure is due to sidewall failure cause by flexing of the sidewall. Dual tires decrease sidewall flexing, thereby increasing tire life. He went on to say that dual tires also provide greater traction by [ fiplacing more tire surface in contact with the ground. As an example, he noted that in some parts of the country one finds some farm tractors with four-wheel-drive and triple tires.

In addressing the question of restricted visibility, Mr. Brass agreed “that when the machine is pointed in a particular direction and you look only across the very top of the hood that there is an area of restricted visibility ahead of the machine.” Mr. Brass went on to say that he agreed with Mr. Rodrigue “that all you need to do is, is turn the steering wheel a bit and then you can see the area that would formerly have been hidden and you can turn the wheel the other way and you can see that area without difficulty.” In addition, Mr. Brass explained, the seat on the ADT is fully adjustable, up and down, fore and aft, and even has “a weight adjustment which allows you to basically crank up the spring force to increase the height of the operator as he sits in the cab.”

One of the plaintiffs’ experts had opined that visibility was restricted because of inferior material in the windshield which permitted scratching and pitting, when questioned about this allegation, Mr. Brass replied:

[T]he windows that were provided by Cameco, the windshield and the two quarter windows were made of a material identified as lexan. Lexan is one of the acrylic families. That’s the clear kind of plastic that you see and it’s very break resistance [sic]. That’s the reason it was used here. It was not only lexan, but it was a special version of lexan called marguard, which has a scratch resistance [sic] surface, so it, it is the kind of material that you might use in the dirty, dusty kind of environment which this machine would be found in [sic].

In sum, Mr. Rodrigue stated, “I do not believe that the [design of the] 405B dump truck was a cause of the accident that involved Russell Domingue.”

These witnesses’ testimony as to the visibility is bolstered by a review of the video tape presented to the jury that clearly shows, when sitting in the driver’s seat, [7an unimpeded view of the area in front of the tires that ultimately ran over Mr. Do-mingue.

The majority relies, in affirming the JNOV, on the trial court’s finding that “the expert testimony presented by Mike Sutton and Peter Smith demonstrated that the blind spot on the 405B truck was caused by a [design defect] and was a proximate cause of Domingue’s death.” The majority, however, ignores the evidence presented to the jury to the contrary.

The majority further notes that “[t]he trial court found the blind spot was exceptionally large, causing a driver to be unable to see, at all, a person of Domingue’s height in the location of the accident. The court also found the design defect which causes the blind spot was not necessary to the functioning of the truck and could have been easily modified at minimal cost.” A review of the record shows that these conclusions by the trial court are reached not by relying on uncontroverted evidence but on evidence that was highly controverted. For example, Mike Sutton, upon who’s testimony the trial court relied in reaching its conclusion, testified on direct that Mr. Do-mingue was entirely in a blind spot from the time the ADT operator began moving the machine forward until Mr. Domingue was struck and killed. On cross-examination, however, it was established that Sutton did not necessarily have the correct information as to Mr. Domingue’s location before the ADT pulled forward, and Sutton admitted that when Mr. Domingue was struck and killed by the left, outside tire he was not in a blind spot.

It is the jury’s function to determine what testimony to accept and what to reject. Its is error on the part of the trial court to substitute its judgment for that of the jury when the jury verdict is clearly supported by the evidence. It is clear that ^reasonable persons, in the exercise of impartial judgment, could have found Ca-meco free from fault and it was error for the trial court to grant the plaintiffs’ motion for JNOV.

Accordingly, I would reverse the trial court’s JNOV and reinstate the jury verdict.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Monquita JOHNSON, Plaintiff-Appellant, v. CITY OF BASTROP, Defendant-Appellee.
    No. 41,240-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 1, 2006.

      Anthony J. Bruscato, Monroe, for Appellant.
    Robert M. Baldwin, Mark J. Neal, Monroe, Donald H. Zeigler, III, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, Judge.

hThe plaintiffs, Monquita Johnson, La-Sandra Alford and Eric Avery, appeal a judgment in favor of the defendant, City of Bastrop (“the City”). The trial court found that the plaintiffs failed to show that the City was negligent. For the following reasons, we affirm.

FACTS

On the morning of January 28, 2004, Monquita Johnson was driving an automobile on Hood Street in Bastrop, Louisiana, when she observed a dislodged manhole cover in the road. Johnson attempted to avoid the manhole by turning, but the rear driver side tire went down into the hole, causing the vehicle to leave the roadway. The automobile, a 1998 Dodge Neon, was owned by Johnson’s mother, LaSandra Alford, and was covered by an insurance policy issued by USAgencies. Johnson was an excluded driver under the policy.

Johnson next drove the vehicle approximately three to five blocks to her mother’s house. As a result of the accident, the vehicle’s tire rim was damaged and the tire was flattened. Johnson took photographs of the damaged tire and the manhole cover. Johnson and Alford then contacted the City and police to report the dislodged manhole cover. The City completed a “corrective maintenance work order” and sent a worker later that day to secure the manhole cover in place and seal it with tar to prevent the cover from becoming dislodged again.

After the accident and over the next several days, Johnson felt pain in her neck and back. Johnson stated that she did not go to the doctor at the time because she did not have sufficient funds or health insurance. In ^February 2004, Johnson began working with a janitorial service, where her job duties included mopping, vacuuming and emptying the trash. Johnson later testified that during the three months following the accident, she experienced recurring neck and back pain, which she treated with Tylenol and hot baths.

In April 2004, Johnson visited the family physician, Dr. Allen Spires, who diagnosed her with cervical and lumbar sprain. Dr. Spires prescribed Skelaxin, Motrin and four sessions of physical therapy, which Johnson completed in May 2004. While working in June 2004, Johnson felt back pain after lifting a trash bag. Dr. Spires removed her from work for eleven days and then released her to return to her job. Johnson’s condition improved over time, but she still felt occasional back pain at the time of trial. Johnson incurred $875 in total medical bills.

Subsequently, the plaintiffs, Monquita Johnson, her husband, Eric Avery and La-Sandra Alford, filed a petition seeking recovery for personal injury, loss of consortium and property damage. After a trial, the district court issued oral reasons, finding that the City was not liable for Johnson’s injuries because it had not received actual or constructive notice of the dislodged manhole cover before the accident. The court further found that Alford was precluded from recovery for property damage because she gave Johnson permission to drive the vehicle even though she was an excluded driver under the insurance policy.

In addition, the court determined that Johnson and Alford could not recover for bodily injury or property damage of less than $10,000 because |3of their failure to maintain compulsory motor vehicle liability insurance under LSA-R.S. 32:866, the “no pay, no play” statute. The trial court rendered judgment in favor of the City, dismissing plaintiffs’ claims. The plaintiffs appeal the judgment.

DISCUSSION

In two assignments of error, the plaintiffs contend the trial court erred in finding that the City was not negligent since it did not have notice of the loose manhole cover before the accident. Plaintiffs argue that although the City did not have notice that this particular manhole cover was dislodged, the City knew or should have known that this type of lightweight manhole cover was likely to become loose, creating a risk of injury to motorists.

No person shall have a cause of action against a public entity for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. LSA-R.S. 9:2800. In order to recover against a public entity for damages due to road defects, the plaintiff must prove by a preponderance of evidence: (1) the thing that caused her damages was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of plaintiffs harm. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216.

| ¿Under LSA-R.S. 9:2800, constructive notice is defined as the existence of facts which imply actual knowledge. This definition allows for the inference of actual knowledge to be drawn from the facts demonstrating that the defective condition had existed for such a period of time that it should have been discovered and repaired if the public entity had exercised reasonable care. Lutz v. City of Shreveport, 25,801 (La.App.2d Cir.5/4/94), 637 So.2d 636, writ denied, 94-1487 (La.9/23/94), 642 So.2d 1294. The district court’s findings pursuant to LSA-R.S. 9:2800 are subject to manifest error review. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Johnson v. City of Winnfield, 37,939 (La.App.2d Cir.12/10/03), 862 So.2d 433. The appellate court will review the entire record to determine whether the district court’s findings were clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993); Johnson, supra.

In the present case, Leonard Harris, a supervisor of the City’s sewer department, testified there were approximately 3,000 manholes throughout Bastrop, including a number with older, lightweight (65-70 lbs.) covers and others with newer, heavier (250 lbs.) covers. Harris stated, that the manhole cover involved in Johnson’s accident weighed 65 to 70 pounds and had been installed in the 1950s. Harris testified that the City did not have a procedure for the periodic inspection of manhole covers and had not posted warning signs regarding the possibility of dislodged manhole covers.

Harris explained that manhole covers can become dislodged in several ways, such as when they are driven over by a large vehicle, when pushed out of place by the force of water flowing through sewers after a |fiheavy rain, or when moved by individuals. Harris stated that the problem of manhole covers pushed up by rising water occurred in certain areas, not throughout the city, and that there was no record of any prior complaint regarding the particular manhole cover involved in the accident. Harris testified that since 1986, the City had been gradually replacing older, light-weight manhole covers with heavier ones.

Another city employee, Eric Harris, testified that he and four other workers in the sewer department responded to complaints about dislodged or broken manhole covers. He estimated that during the past three to four years, he had welded down or secured with tar approximately 20 to 40 loose manhole covers. Harris testified that he was the only welder and he did not know how many manhole covers had been sealed by the other workers.

The plaintiffs presented the testimony of Floyd Gadberry , a licensed civil engineer with experience in the design and installation of sewer mains in public streets and residential subdivisions. Gadberry testified that a dislodged manhole cover created a hazard because the tire of a vehicle passing over a loose cover could drop into the manhole, causing damage to the vehicle. Gadberry stated that he did not know what had caused the cover at issue to become dislodged. Gadberry acknowledged there was no information regarding the length of time that this manhole cover had been loose before Johnson’s accident.

In their brief, the plaintiffs argue that the City had constructive notice that the manhole cover at issue was defective because other manhole covers |fithroughout the city sewer system had become dislodged over a number of years prior to Johnson’s accident. However, plaintiffs’ argument is not supported by the applicable law, LSA-R.S. 9:2800, which expressly provides that a public entity will be liable for damages caused by things in its care only when it has actual or constructive notice of “the particular vice or defect” which caused the damage. Thus, the mere fact that a manhole cover was previously dislodged in another part of the city does not impute to the City knowledge that this particular manhole cover presented a dangerous condition.

Nor is plaintiffs’ argument, that notice is presumed because the City created the unreasonably dangerous condition by placing thousands of light-weight manhole covers throughout the public streets, supported by the cited case of Whatley v. City of Winnfield, 35,132 (La.App.2d Cir.12/5/01), 802 So.2d 983, writ denied, 02-0015 (La.3/22/02), 811 So.2d 939. In Whatley, the issue was whether there was evidence that the City of Winnfield had created a dangerous condition with respect to the specific water meter involved in the accident, not whether the municipality’s placement of water meters was hazardous.

Here, the testimony of the city workers demonstrated that there had not been any prior complaints of dislodged manhole covers on Hood Street and that no workers had moved this particular cover. In addition, Johnson and Alford testified that they had never previously seen any uncovered manholes or dislodged manhole covers on Hood Street.

Based upon the evidence presented, the plaintiffs failed to establish 17that the City was notified of the dislodged manhole cover prior to the accident or that the dangerous condition had existed for such a period of time that the City would have discovered the hazard in the exercise of reasonable care. Consequently, we cannot say that the trial court was clearly wrong in finding that the City lacked actual or constructive notice of the dangerous condition prior to the accident and was not liable for the plaintiffs’ damages. Thus, the assignments of error lack merit. In reaching this conclusion, we pretermit a discussion of the remaining assignment of error and do not address the applicability of LSA-R.S. 32:866 in this case.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, Monquita Johnson, LaSandra Alford and Eric Avery.

AFFIRMED.

      . Although this witness was identified as Floyd Gadberry in the trial transcript, we note that his actual name is Foy Gadberry.


author: CARAWAY, J.

text:
    Kenneth A. GREENWAY, Plaintiff-Appellant v. Mary S. WAILES, Minnie Belle Gilcrease, Judy Marshall Dickson, and James Troquille, Defendants-Appellees.
    No. 41,412-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 1, 2006.

      Cook, Yancey, King & Galloway by Bernard S. Johnson, Shreveport, for Appellant.
    William R. Jones, Coushatta, Wiener, Weiss & Madison by Geoffrey D. West-moreland, Shreveport, Bethard & Bethard by Robert E. Bethard, Coushatta, for Ap-pellees.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

h The enclosed estate in this action was surrounded on three sides by a lake. The only access to a public road was across lands previously subdivided by defendants for lake front development. The roads laid out for the subdivision ended at a dead end at plaintiffs enclosed property, yet the roads were not dedicated public roads. Before the trial, the parties stipulated that plaintiffs tract was enclosed and that the existing roads provided plaintiff with the least injurious access through the subdivision to the nearest public road. Plaintiff was also allowed by consent judgment before trial to gravel the last portion of the road leading to his tract. The trial addressed the defendants’ reconventional claims for indemnification to the servient estate under Civil Code Article 689 and their claims for trespass for plaintiffs initial unauthorized use of the roads. The trial court judgment recognized the servitude in favor of plaintiffs property, awarded indemnification to defendants and addressed other matters regarding plaintiffs use of the roads in the subdivision. Both parties appeal the rulings. We affirm in part and reverse in part.

Facts

On May 20, 2005, Kenneth A. Greenway (“Greenway”) purchased about 7 acres of land on Grand Bayou Lake in Red River Parish for $50,000 cash. The peninsular-shaped tract was surrounded by the lake on three sides. On the west side of Green-way’s property was Grand Bayou Subdivision, originally platted in 1987. The westerly property line of Greenway’s tract abutted Lot 10 of Grand Bayou Subdivision and Elm 1 ^Street, a 50 foot wide road, as shown on the subdivision plat. Elm Street is shown on the plat as extending along the water’s edge on the south side of the peninsula, ending as a dead end at Greenway’s property line. The recorded plat declared that “STREETS ARE NOT DEDICATED TO THE PUBLIC.” Notwithstanding, the recorded restrictive covenants for Grand Bayou Subdivision addressed the use of the roads, as follows:

The parties further declare that the roads shown on said plat are not dedicated to the public, however, the owners of any lots of the Grand Bayou Subdivision are granted a perpetual right of use for said roads.

Because of the creation of the public lake around his property and the nonpublic nature of Elm Street, Greenway’s land is an enclosed estate. Six weeks after purchasing his property, Greenway sued the Grand Bayou developers for a right of passage, alleging that his property was an enclosed estate pursuant to La. C.C. art. 689. Greenway’s petition alleged that Mary S. Wailes, Minnie Belle Gilcrease, Judy Marshall Dickson and James Troq-uille (hereinafter collectively “Wailes”) owned the adjoining, subdivided land, including Elm and Oak Streets in the subdivision which provided access to the nearest public road.

On July 20, 2005, Wailes reconvened, and alleged ownership of 70 acres, subdivided into Grand Bayou Subdivision and Grand Bayou Subdivision Unit No. 2. Wailes further alleged that “they have sold a variety of the lots ... however the roads in Grand Bayou Subdivision are all | ^privately owned as more fully set forth in the public records of Red River Parish.”

At the eventual trial of this case, the parties’ stipulations included Greenway’s ownership of his property and Wailes’ ownership of the subdivision roads. The parties further stipulated that the location of the shortest and least injurious route to access the public road was along Elm and Oak Streets.

Greenway testified that he knew about the problem with access before he bought his parcel. Over the weekend immediately following the Friday when his deed was recorded, Greenway had 80 or 90 percent of his land cleared with a bulldozer. On cross-examination, he described his initial entry to the land through the subdivision as follows:

Q Mr. Greenway, tell me, before we had this limited agreement of access, what — tell me, explain to me what rights you had in this road? What rights you had to use it or rights you had in it?
A Before we had the July 22 agreement?
Q Yes, sir.
A I was — there were no — -there are not any no trespassing signs posted. They’re actively trying to sell lots. I would assume that I could ride through that neighborhood just like any other person.
Q But, before that you weren’t just riding through, you had brought a dozer out there and you were clearing land, correct?
A That is correct. And, when I was requested to stop we did so immediately.

Thereafter, at a hearing on July 22, 2005, the parties jointly stipulated to an agreement permitting Greenway access to work on his property. The trial court signed a consent judgment on August 1, 2005, which gave | ¿Greenway a right of passage for unlimited general use via Oak Street, Elm Street and part of Maple Street. Also, Greenway was allowed to move heavy equipment to his property for certain limited time periods to burn brush and haul off ash using a licensed, bonded and insured contractor. Finally, the consent judgment authorized Greenway, at his option, the right to “deliver and spread gravel to that part of the roadway which currently has no gravel, being the part connecting his property to Elm Street, across the tract presently owned by Mr. Troquille.” The consent judgment reserved the remaining issues for trial.

Thereafter, Greenway hired a contractor to clear the lot and build a road. He spent $4,427 for 452 linear feet of gravel road, 352 feet of which was placed on the existing road (Elm Street) in Grand Bayou Subdivision. This portion of Elm Street apparently extended along the south side of Lots 8, 9 and 10, which formed the base of the peninsula of land before reaching Greenway’s property. Greenway testified about the difference in the condition of the road along Elm Street as it approached his property:

Q What part of the road, condition of the road, was different?
A Well, you can see from the photographs that it was — When the gravel stopped there by Ms. Gilcrease’s driveway it was nothing but a little dirt, pig trail if you will. After we got done, we put 139 tons of gravel on that road. We spent a little bit of money improving it and making it drivable. And we actually dressed up the road in front of Ms. Gil-crease’s house. And the road in the neighborhood is slightly better than it was when we left.

He further testified that the subdivision road was not of “uniform” width. In some places it was about 8 feet wide, and a little wider at the intersections. |sThe road Greenway constructed was “as wide as the road was there at Ms. Gilcrease’s house, and we followed the path of the previous dirt road.”

Mary S. Wailes testified as follows concerning Greenway’s gravel operations on the existing subdivision road:

Q ... As part of this limited access, tell me what your understanding was, about the portion of the road that Mr. Greenway was going to improve, that he was going to put gravel on. What was your understanding?
A That he was — We had a solid base on that road, that you could pass on. It was — -The subdivision is on a sand pile and sand washes. We had graded the roads as low as we could, planted the sides with grass, so that we could pass, and put the gravel on about fourteen — I believe it measures about sixteen feet across those roads, that we fixed. And Mr. Greenway volunteered to put gravel from Ms. Gil-crease’s house down to his lot. What we expected was that he was just going to put gravel, like we did on the front_ Instead of Mr. Greenway going directly to his property, he cut across which was the Troquille property, that now belongs to Mr. Grigs-by....

The testimony suggested that Grigsby was the successor in title to one of the three lots fronting Elm Street formerly owned by Troquille.

After the trial, the trial court ruled from the bench. The judgment, signed on February 10, 2006, dismissed Wailes’ trespass claim against Greenway, finding that Greenway’s use of -the subdivision roads before the initial consent judgment caused no damages to Wailes. Greenway was granted a predial servitude of passage for the benefit of his land, the dominant estate, through any roads existing in Grand Bayou Subdivision, the servient estate. Based upon the testimony of land appraisers concerning the value of the lake property, the trial court also ordered Greenway to pay to Wailes $15,885 in compensation for the servitude, plus judicial interest | fifrom July 20, 2005. In reference to that $15,385 compensation award, the judgment further provided as follows:

Pursuant to La. Civil Code art. 690, this judgment is applicable only if Greenway maintains, constructs or allows five (5) or less lots for individual home sites on the property referenced herein. Should Greenway construct or allow more than 5 lots for individual home sites on his property, Wailes shall be entitled to seek further compensation in accordance with applicable law.

Finally, Greenway was ordered to pay his proportionate share of annual maintenance in the same and similar manner as requested of other owners of lots in Grand Bayou Subdivision. Both parties appeal.

Discussion

I.

This enclosed estate dispute is somewhat unique because of two facts which were never in dispute. First, the location of the actual strip of land within the Wailes’ servient estate over which the Greenway’s legal servitude of passage has now been designated (hereinafter the “Elm/Oak Corridor”) is admitted by the parties. A controversy over the location of the passage right, usually adjudicated by application of Civil Code Article 692, is not present because the parties stipulated that the Elm/Oak Corridor is the “shortest route” to the public road and the route “least injurious” to the Wailes’ surrounding property.

17Second and most significant, it is undisputed that the Elm/Oak Corridor was already burdened by the real obligation of an existing right of passage/predial servitude in favor of the subdivision lot owners who, for the most part, are not parties to the suit. This undisputed fact makes the Wailes’ ownership of the Elm/Oak Corridor tantamount to ownership of land subject to a public road, as indeed all lot owners, their guests and members of the public at large seeking to contact lot owners are free to travel on the Elm/Oak Corridor virtually at will. Also, the existence of the rights of use of the other lot owners means that Greenway has stipulated that the court’s establishment of his legal servitude along the Elm/Oak Corridor will be a shared passage right.

Clearly, by virtue of the recorded covenants, the Wailes’ ownership of the Elm/ Oak Corridor was subject to the perpetual rights of passage in favor of the subdivision lots, which themselves would otherwise be enclosed estates in the absence of the existing rights of passage. Also, from that narrow corridor of land, Wailes could receive no civil fruits and rents for its surface use. Thus, in terms of our civilian concept of the bundle of property rights comprising the ownership of the Elm/Oak Corridor, Wailes’ | ^ownership is virtually a naked legal title without the rights of usus and fructus. In this case, the Wailes claim that their naked legal title, which admittedly now owes an additional servitude of passage to accommodate Green-way’s enclosed estate, is subject to indemnification which the trial court awarded in the amount of $15,385.

Civil Code Article 689 defines the legal servitude for the right of passage to an enclosed estate. That article provides for a right of indemnification to owners of the servient estate as follows:

“He [the owner of the enclosed estate] is bound to indemnify his neighbor for the damage he may occasion.”

From this principle, the question presented is whether the trial court’s recognition and grant of the right of passage over the Elm/Oak Corridor in favor of Greenway has damaged the Wailes’ naked legal title to that tract? For the following.reasons, we find no damage.

Initially, as indicated above, all of the owners of real rights in the Elm/Oak Corridor were not made parties in this suit. In contrast to the Wailes’ ownership of the naked legal title, the critical ownership that may be subject to some “damage” occasioned by Greenway’s use of the gravel | (¡subdivision streets is the right of use owned by the lot owners who also are entitled to a right of passage over the Elm/Oak Corridor. However, as indicated by the analogous principle reflected in Civil Code Article 720, “[t]he owner of the servient estate may establish thereon additional servitudes, provided they do not affect adversely the rights of the owner of the dominant estate.” In this case, the trial court’s judgment recognizing the legal servitude of passage in favor of Greenway established an additional burden upon the servient estate of Wailes. However, that burden does not appear to adversely affect the existing rights of use of the dominant estate owners of the subdivision lots. See, Collins v. Taylor, 518 So.2d 602 (La.App. 1st Cir.1987). Their use of the Elm/Oak Corridor is the same as the newly imposed use in favor of Greenway and can be exercised jointly without any conflict, like the use of a public road.

In recognition of the joint use of the subdivision roads, the trial court’s judgment attempted to regulate the future contingency of road maintenance between Greenway and these absent lot owners as set forth in the following provision:

Greenway shall pay his proportionate share of annual maintenance in the same and similar manner as requested of other owners of lots in the Grand Bayou Subdivision. Greenway’s proportional payment of maintenance is based on the number of lots and/or single family dwellings existing or being constructed on his tract of land and will be increased proportionately as additional single family dwellings and/or lots are added within the Greenway tract.

ImThis judgment, however, is flawed. First, it implies that Wailes, with their naked legal title to the Elm/Oak Corridor, may regulate the predial servitude rights of the lot owners and Greenway by imposition of an undefined annual maintenance charge. The subdivision covenants do not give Wailes such power as the owners of the servient estate. To the contrary, the Civil Code articles governing the rights of owners of the dominant estate for a right of passage suggest that such maintenance expense will be borne by the subdivision lot owners and Greenway and is not an obligation owed to Wailes as owners of the servient estate. La. C.C. arts. 744, 691 and 651. Second, by implication the judgment attempts to regulate the maintenance expense of the joint use of the passageway for parties who are not litigants. This is not only procedurally improper, but unnecessary. By analogy to Civil Code Article 806 governing the rights of co-owners, the maintenance expense of the joint use by the owners of the conventional right of passage, the lot owners, and the owner of the legal right of passage, Greenway, should be shared. Otherwise, by tacit dedication to the governing political subdivision (La. R.S. 48:491) or other agreement with the political subdivision, the streets within the subdivision may, through a political process, become public with maintenance by the political subdivision, as in the case of most streets in populated subdivisions.

In Second, because of the nature of the legal servitude which has now been recognized, the Wailes’ naked legal title to the Elm/Oak Corridor has not been damaged, nor has their property been taken from them, like an expropriation. Civil Code Article 659 defines a legal servitude such as the right of passage owed to an enclosed estate as a limitation on ownership established by law. La. C.C. art. 659. The limitation on ownership is for the “common utility” of adjacent properties which has been a policy of this state regarding ownership of immovables since statehood. Civil Code of 1808, Art. 12; see Art. 664, La. C.C. Comp. Ed. in 16 LSA-C.C., p. 406 (1972). Likewise, Article 689’s legal servitude for the protection of the enclosed estate has been a limitation on ownership of immovables since our earliest civil code. Civil Code of 1808, Art. 46; see Art. 699, La. C.C. Comp. Ed. in 16 LSA-C.C., p. 429 (1972). Thus, the title to Wailes’ property has been burdened with this limitation since its severance from the sovereign, and the newly materialized need for the servitude by the neighboring estate does not create the equivalent of a “taking.” Smith v. Chandler, 251 So.2d 417 (La.App. 1st Cir.1971). Article 689 speaks of damage. It does not discuss compensation based upon the appraised value as though the servient estate used for the roadway has been expropriated.

We find that the trial court’s focus on the appraised values of these lake front properties and the enhancement of the value of the Greenway L ¿tract attempted to provide Wailes a measure of compensation analogous to expropriation, which is not the test of Article 689. Instead, Article 689 only allows that the property “may” receive “damage” requiring indemnification by the owner of the dominant estate. As indicated above, Greenway’s newly recognized use of the Elm/Oak Corridor is not any more burdensome on the Wailes’ ownership of the tract. They were not free in their ownership of the streets to do anything else with the use of the property other than to allow transportation through the subdivision. Greenway’s additional transportation right therefore results in no damage to the ownership of the naked legal title to the streets.

Accordingly, we conclude that the recognition of the right of passage for Green-way’s enclosed estate did not cause damages to the Wailes’ property, which was already subject to conventional and perpetual rights of passage in favor of the lot owners of the subdivision. The trial court’s award of $15,385 is reversed and the quoted provisions of the judgment attempting to address the maintenance expenses for the Elm/Oak Corridor and the future use of Greenway’s property are likewise reversed.

II.

Wailes’ answer to the appeal asserts that the trial court erred in failing to find a trespass because of Greenway’s initial entry through the 1 ^subdivision onto his property before the consent judgment and because of his work in graveling the roads after the consent judgment.

The evidence reveals that Greenway entered his property after his purchase of the land and immediately began clearing work. There is no evidence that the roads in the subdivision were posted prohibiting the public from using the roads. The contractor who conducted the clearing work for Greenway lived in the subdivision and moved his heavy equipment across the subdivision streets which was his presumed right as an owner in the subdivision. The trial court’s ruling emphasized that the general public would expect to have the use of these subdivision roads. The trial court also found that Greenway’s initial use and his use thereafter had not caused damage to Wailes.

Wailes’ technical urging of a trespass was appropriately rejected by the trial court. The active, unfettered use of the roads by the public was the relevant fact entitled to greater weight than Wailes’ complicated ownership, and even if an intentional tort of trespass occurred, there was no showing of damages.

Finally, the Wailes claim that they will be forced to repair certain damages caused by the manner in which Greenway constructed the last portion of Elm Street near his property. That road grading work was performed pursuant to the initial consent judgment and was never raised as a specific topic in Wailes’ reconventional pleadings. The claim, as indicated above, would involve the real rights of the other lot owners in the subdivision who own the rights of passage to the roads. The Wailes, in their | ucapacity as the owners of the naked legal title to Elm Street, are not responsible for road grading or the appropriate width of the gravel on Elm Street. To the extent that Greenway’s work in any manner affected the property of the adjacent lot owners, those owners may independently assert their claims.

Conclusion

The trial court’s judgment recognizing Greenway’s right of passage and rejecting Wailes’ claims for trespass and related damages is affirmed. The portions of the judgment awarding indemnification to Wailes and addressing annual maintenance expenses and Greenway’s future use of his property are reversed. Costs of appeal are assessed to appellees.

AFFIRMED IN PART, REVERSED IN PART.

      . Ultimately, the parties stipulated that MSW Properties, Inc., Judy Dickson and James Troquille owned the roads, and the record indicates that Mary S. Wailes is an owner of MSW Properties, Inc. It is this group that owns the subdivision streets which will be referred to as Wailes.

      . The Elm Street and Oak Street corridor does not actually run through the defendants' surrounding lands along its entire course to a public road. This is because the record indicates that it runs through parts of the subdivision where the lot owners on either side of the street are not members of the Wailes group.

      . La. C.C. art. 692 provides: "The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.”

      . In the filing of the plats for the subdivision by the original owner(s), it was indicated that no statutory dedication of the streets was made pursuant to La. R.S. 33:5051. However, the covenants for the subdivision designated rights of passage over the streets to all future lot owners, with no gated access restriction into the subdivision placed upon the lot owners or parties interacting with the lot owners. The covenant for the specified use of the roads pursuant to the subdivision plan, if not actually creating true predial servitudes by itself, would fall under our law governing building restrictions. La. C.C. art. 775. The rights created by such covenant are incorporeal immovables and real rights likened to predial servitudes and regulated by application of the rules governing predial servitudes. La. C.C. art. 777.

      .The term "naked legal title" is of course not a reference to "naked ownership” as discussed in the Civil Code articles on usufruct. La. C.C. art. 535, et seq. The term will be used herein as it is sometimes figuratively employed in the jurisprudence to indicate property ownership subject to such a significant servitude so as to leave the owner of the servient estate with very little enjoyment and economic value from the property. See De-Sambourg v. Board of Commissioners for Grand Prairie Levee District, 621 So.2d 602, 610 (La.1993), where the supreme court referred to the ownership of batture property as “naked legal title ... subject to the servitude, without right of usus and fructus." In Police Jury of Parish of St. James v. Borne, 198 La. 959, 5 So.2d 301 (1941), the court observed that the "naked title" of a tract subject to a servitude for a road "would be of little value” to the owners thereof.

      . The appellate court may notice on its own the nonjoinder of indispensable parties and apply the peremptory exception. La. C.C.P. art. 927. However, from our analysis, the absence of the other lot owners from this litigation does not as a practical matter impede their ability to protect their interests. La. C.C.P. art. 641.

      . Professor Yiannopoulos notes in his treatise that the indemnification owed under Article 689 "... may also be due to a person having a predial servitude or other real right on the servient estate.” A.N. Yiannopoulos, 4 Louisiana Civil Law Treatise Predial Servitudes § 98, at 288, Note 2 (3d ed.2004).

      . The individual members of the Wailes group and/or the group as a whole apparently own certain lots in the subdivision which may allow them to seek reimbursement for maintenance expense as co-owners of the servitude of use for the streets, as discussed infra.

      . Article 806 provides, in pertinent part: "A co-owner who on account of the thing held in indivisión has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.”

      . The possibility for joint use of a right of passage by the owners of the dominant and servient estates in this legal servitude setting is a practical reality recognized by the jurisprudence and supported by the "least injurious” principle of Civil Code Article 692. See Cazes v. Robertson, 421 So.2d 423 (La.App. 1st Cir.1982). Thus, in a situation involving the construction of a new roadway by the owner of the enclosed estate, the servient estate may in fact receive economic benefit (in contrast to "damage”) by the use of the roadway by consent of the owner of the enclosed estate, if not by operation of law.

      . In reaching this conclusion, the case of Hutchison v. Jackson, 399 So.2d 1238 (La. App. 3d Cir. 1981), relied upon by Wailes, is easily distinguished. The property for which compensation for damages was awarded in that case was not previously subjected to an existing road servitude in favor of the public or other adjacent lot owners, so that the party awarded compensation for damages owned full ownership of the tract and not, as in the present case, naked legal title.


author: DREW, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. John Vincent SPANO, Appellant.
    No. 41,032-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 1, 2006.

      Louisiana Appellate Project, by G. Paul Marx, Lafayette, William B. King, Shreveport, for Appellant.
    Paul Joseph Carmouche, District Attorney, Ron Christopher Stamps, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS and DREW, JJ.
   DREW, J.

11 John Vincent Spano was convicted as charged of second degree battery for striking his attorney in court and rendering him unconscious. Adjudicated as a fourth felony habitual offender, Spano was sentenced to life imprisonment without benefits. The defendant appealed his conviction, adjudication, and sentence. We affirm his conviction but vacate his adjudication and sentence as a fourth felony habitual offender. This matter is remanded for further proceedings.

FACTS

On July 12, 2004, Spano was in court for his petit jury trial in another matter, along with his court-appointed Indigent Defender Board attorney, Ricky Swift. Prior to announcing ready to begin the jury trial and at the defendant’s request, Swift urged several motions for continuance. After the trial court refused to continue Spano’s trial, Swift stated that the defendant was ready to proceed and began to prepare his notes for trial. The defendant stood up and addressed the court that his family had hired another attorney. The court indicated that the defendant could hire another attorney, but that the ease would proceed to jury trial. Following a bench conference, Swift returned to his chair and gathered his notes. The defendant again stood up, then struck Swift a severe blow on his head.

Assistant District Attorneys Brady O’Callahan and Dhu Thompson saw the defendant hit Swift. According to the witnesses, Spano reached his hand back and struck Swift, using the full force of his body. Spano used profanity and said something like, “you’re trying to get me a life sentence” or “you’re not going to get me a life sentence.” The blow knocked Swift | gforward, then out of his chair and onto the floor. O’Callahan rendered first aid by applying pressure from his hand onto Swift’s head wound in an attempt to stop the flow of blood. He observed a huge bloodstain on the floor and that Swift had both eyes closed and was unresponsive. After a couple of minutes, the courtroom was cleared and secured, but Swift still did not move or respond. O’Callahan stated that it took “a while” to awaken Swift. Thompson and Deputy Saundra Lefall corroborated this account of the crime, both noting that Swift’s eyes were closed and he was unresponsive to physical touching and shaking.

Swift recalls:

1. the defendant saying something about him not representing the defendant correctly;
2. being on the floor as he bled profusely from his left eye area;
3. being treated at a hospital, where he received several sutures to close the head wound;
4. that his eye was painful, bruised, and swollen for a couple of weeks; and
5. that he received follow-up medical treatment to check for a possible blood clot and damage to his vision.

As a result of this incident, the defendant was charged by bill of information with one count of second degree battery, for which crime another petit jury convicted him. Thereafter, the state filed a fourth felony habitual offender bill. The adjudication hearing, adjudication, and sentencing all took place on September 22, 2005. At the beginning of that hearing, the defense made a motion for new trial based in part on the fact that the defendant wore his prison armband throughout the trial. It was | ?,argued that this prejudiced the jury against him. The motion for new trial was denied.

During the habitual offender proceeding, the state presented the following evidence:

• Proof of guilty plea actually taken on April 15, 1996, to an October 18, 1995, aggravated battery (Docket # 176,206 of the First JDC), relative to which Exhibit S-l contains minutes and transcript;
• Proof of guilty plea taken on April 15, 1996, to cruelty to juveniles committed on July 8, 1995, (Docket # 176,681 of the First JDC), as reflected by Exhibit S-2, containing minutes and transcript;
• Proof of guilty plea taken on February 25, 1998, to simple burglary committed on August 29, 1997 (Docket # 189,413 of the First JDC), as reflected by Exhibit S-3, which contains minutes and transcript;
• A request that the court take judicial notice of the instant offense, second degree battery, committed July 12, 2004, with conviction by a jury on July 12, 2005 (Docket # 236,880 of the First JDC); and
• Fingerprints of the defendant taken in court (Exhibit S — 4).

After examining the fingerprints on the back of the bills of information from the predicate offenses and comparing them to the defendant’s fingerprints taken in court, the state’s fingerprint expert determined that all fingerprints were taken from the defendant. After presentation of the state’s evidence, defendant raised a question regarding the ten-year cleansing period and the first conviction, which argument was rebutted by the state. The trial court concluded that the state was correct in its argument regarding the cleansing period, and defense counsel stated that it had no further arguments. No objection was made to the use of both convictions obtained on the same day as separate convictions for sentencing enhancement purposes. The trial court subsequently found the defendant topbe a fourth felony habitual offender, sentencing him to serve the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant’s timely-filed motion to reconsider sentence was denied.

DISCUSSION

Sufficiency of Evidence

The defense argued that the state failed to meet its burden of presenting evidence sufficient to find the defendant guilty of second degree battery because it failed to present medical evidence that the victim became unconscious, the one element of “serious bodily injury” most relevant to this prosecution. Defendant (incorrectly) also contended in brief that the assistant district attorney testified that Swift was unresponsive “for an instant,” and that no other testimony was in the record, leaving open a possible claim that the unresponsiveness was merely from the initial shock of the blow. Defendant further speciously argued that the state failed to prove intent.

The law on sufficiency is clear. La. R.S. 14:34.1 defines second |5degree battery as a battery committed without the consent of the victim when the offender intentionally inflicts “serious bodily injury,” listing five possible situations, proof of any one of which is sufficient to prove serious bodily injury:

• unconsciousness;
• extreme physical pain;
• protracted and obvious disfigurement;
• protracted loss or impairment of the function of a body member, organ, or mental faculty; or
• a substantial risk of death.

The offense of second degree battery requires additional proof that the offender had the specific intent to inflict “serious bodily harm.” State v. Welch, 92-1866 (La.2/22/93), 615 So.2d 300. Specific criminal intent is that 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).

Lin order to prove a second degree battery, the state had to prove that the defendant: (1) committed a battery upon the victim, (2) without the victim’s consent, and (3) intentionally inflicted serious bodily injury. State v. Young, 00-1437 (La.11/28/01), 800 So.2d 847. The testimony of a victim or a witness may present sufficient evidence of the element of a battery of whether a victim sustained serious bodily injuries, without any testimony of experts. State v. Hall, 03-1384 (La. App. 5th Cir.3/30/04), 871 So.2d 558.

When viewed in the light most favorable to the prosecution, the evidence was sufficient for any rational trier of fact to find the essential elements of the crime of second degree battery proven beyond a reasonable doubt. Furthermore, the testimony regarding the defendant’s exclamation about getting a life sentence was sufficient to support the finding of specific criminal intent because it indicated that he actively desired the prescribed criminal consequences to follow his act. See La. R.S. 14:10(1).

Adjudication as a Fourth Habitual Offender

CHRONOLOGY
1992 State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992): convictions on the same day are to be counted as one conviction.
07/08/95 #176,681: Spano committed cruelty to a juvenile under 17 years.
07/20/95 #176,206: Spano committed aggravated battery on Jeremy Dorough.
04/15/96 #176,206: Spano pleaded to aggravated battery.
04/15/96 #176,681: Spano pleaded to cruelty to juvenile.
(NOTE: different conducts pleaded on same day).
1708/29/97 #189,913: Spano committed simple burglary.
02/25/98 #189,413: Spano pleaded guilty to simple burglary.
07/12/04 Spano knocked out IDB lawyer.
10/19/04 State v. Johnson, 2003-2993 (La.10/19/04), 884 So.2d 568: overruled Mims; convictions count individually even though guilty pleas were on the same day-PROVIDED same-day CONVICTIONS are BASED UPON UNRELATED CONDUCT, NOT A SINGLE COURSE OF ACTION.
07/12/05 Spano convicted of 2d degree battery.
07/14/05 4th felony offender bill filed.
08/15/05 The Louisiana Legislature essentially overruled State v. Johnson, supra, by providing that multiple convictions obtained on the same day prior to 10/19/04 (Johnson decision) count as one conviction.
09/22/05 Spano adjudicated as 4th felony offender.
Spano claimed:
• his counsel was ineffective by not objecting to the habitual offender bill;
• the provisions of La. R.S. 15:529.1(A)(l)(e)(ii) were not met because two prior offenses were not crimes of violence;
• the predicate offenses in this case do not expose the defendant to a mandatory term of life imprisonment; and
• the appropriate sentencing term here is 20 years to life under La. R.S. 15:529.1(A)(l)(c)(i).

Defendant concedes in brief that the two predicate felonies taken by guilty pleas entered on the same day should be counted as two predicate offenses, citing State v. Johnson, supra. The state contradictorily:

• first notes in brief that the defendant is only a third felony habitual offender, not a fourth, based on recent legislation providing that multiple convictions obtained on the same date prior to October 19, 2004, shall be counted as one; but then
|s« notes at the end of its brief, that the defendant is a fourth offender, because multiple convictions obtained on the same date based on unrelated conduct can be counted separately for sentencing enhancement, also citing Johnson, infra.

In the alternative, the state further argued that a life sentence would still be appropriate for the defendant, even if he is ultimately held to be a third felony habitual offender.

Before any of the other issues raised in these assignments of error are considered, the validity of the defendant’s conviction as a fourth felony habitual offender must be examined.

La. R.S. 15:529.1(A)(l)(c) provides in pertinent part:

If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
* * *
(ii) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Acts 2005, No. 218, § 1, added the second sentence to subsection B of La. R.S. 15:529.1:

.... Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.

| flThis amendment statutorily overruled State v. Johnson, supra, which held that multiple convictions obtained on the same date but based on unrelated conduct can be counted separately for sentence enhancement, overruling State ex rel. Mims v. Butler, supra. The legislature made no statement that the amendment was to be applied retroactively, nor did it state that the amendment was to have prospective effect only.

The law in effect at the time of the commission of the offense is determinative of the penalty imposed upon the convicted defendant. In State v. Parker, 2003-0924 (La.4/14/04), 871 So.2d 317, the court explained that a defendant’s habitual offender status is fixed as of the date of the commission of the crime, since this allows defendant’s own acts to establish his status rather than leaving discretion in the hands of prosecuting attorneys. The defendant becomes an habitual offender at the time he commits the predicate offense and is subject to the punishment provided by the law on that date. Habitual offender proceedings are not a separate crime but are ancillary sentencing proceedings that enhance punishment for a new conviction. The fact that the statute may subsequently be amended after commission of a crime to modify or lessen the possible penalty does not extinguish liability for the offense under the statute as it existed at the time of the offense. The supreme court directed that Parker was to be sentenced according to the version of La. R.S. 15:529.1 in effect at the time Parker committed the charged offense. The longstanding general rule is that the law in effect at the time of the commission of the offense governs the penalty. A recidivist becomes an habitual offender on the date he | ^committed the underlying felony. State v. Parker, supra. Parker was not entitled to be sentenced under a less severe penalty enacted after the date of his underlying offense but in effect when he was adjudicated an habitual offender.

Spano committed this last underlying predicate offense on July 12, 2004. His adjudication as a fourth felony offender occurred on September 22, 2005. In between these two dates, Act 218 of the 2005 Louisiana Legislature became effective (August 15, 2005). As previously observed, the legislature did not direct that this amendment have retroactive effect. However, when the amendment was introduced in the Legislature, the comments thereto stated specifically that the amendment was intended to legislatively overrule State v. Johnson, supra. In its final form, Act 218 stated that the intent of the amendment was:

B. It is hereby declared that the intent of this Section that an offender need not have been adjudged to be a second offender in a previous prosecution in order to be charged as and adjudged to be a third offender, or that an offender has been adjudged in a prior prosecution to be a third offender in order to be convicted as a fourth offender in a prosecution for a subsequent crime. Multiple convictions obtained on the same day prior to October 19, 2001/., shall be counted as one conviction for the purpose of this Section.

Therefore, convictions obtained on the same day prior to October 19, 2004, are to be counted as one offense for purposes of habitual offender adjudications.

Under Parker, supra, Spano’s sentence is governed by the law in effect on the date he committed the predicate offense; i.e., July 12, 2004, when he struck unconscious his IDB attorney. At that time, the habitual [noffender law was governed by La. R.S. 15:529.1 as interpreted by the supreme court in State ex rel. Mims v. Butler, supra, which directed that convictions obtained on the same day be counted as one conviction for purposes of an habitual offender adjudication. Applying Mims, Spano would have been adjudicated a third felony offender.

The supreme court overruled Mims, supra, after the date Spano committed the predicate offense (7/12/04 attack on his lawyer). In State v. Johnson, supra, the supreme court re-interpreted La. R.S. 15:529.1 as it was amended in 1982, by reviewing legislative material unavailable to the Mims court.

The prior offenses upon which Johnson was adjudicated a fourth felony offender were:

1. An armed robbery for which Johnson was arrested on 6/8/82 and convicted 11/15/82 after which he received a 20-year hard labor sentence,
2. A felony auto theft committed on 12/23/92 for which Johnson was arrested on 1/4/93 and to which he pleaded guilty on 8/16/93,
3. A first degree robbery committed on 12/17/92 for which Johnson was arrested on 1/4/93 and for which he pleaded guilty to simple robbery on 8/16/93, and
4. An armed robbery for which Johnson was convicted on 4/24/02.

Justice Weimer examined the 1982 amendment to La. R.S. 15:529.1 and found that the statute did not contain a sequential conviction requirement which the amendment deleted. Overruling Mims, the supreme court held that there is no statutory bar to applying the law in sentencing for more than one conviction obtained on the same date based upon unrelated conduct. Johnson, supra. Thereafter, the Louisiana Legislature then | -^overruled the Johnson decision with Act 218 of the 2005 Louisiana Legislature amending La. R.S. 15:529.1.

In Spano’s adjudication, the minutes and transcripts revealed that both the aggravated battery conviction by guilty plea (Docket # 176,206 of the .First JDC) and the cruelty to juveniles conviction by guilty plea (Docket # 176,681 of the First JDC) occurred on April 15, 1996. Our review also showed that Spano’s criminal conduct for the two 4/15/96 guilty pleas occurred on different days and was not a single course of conduct.

The law that existed at the time of Spa-no’s predicate offense (7/12/04) was the Mims rule of counting multiple convictions on the same day as one. Although the supreme court later overruled Mims, supra, in State v. Johnson, supra, that decision itself was addressed and overruled by the legislative amendment of La. R.S. 15:529.1, which reinstated the Mims rule. While the Legislature did not specifically state the amendment was to have retroactive effect, neither did it state that the law was to be provided prospectively only.

While dealing with another amendment to the Habitual Offender Law which specifically provided that the change was to be applied prospectively only, the court in State v. Jarreau, 2005-0355 (La.App. 4 Cir. 12/14/05), 921 So.2d 155, writ denied, 2006-0131 (La.6/14/06), 929 So.2d 1267, observed that the amendment was an expression of the legislative will at the time it was passed, which must be considered by the court along with other factors in reviewing an excessive sentence claim.

Considering the Louisiana Legislature’s overruling Johnson, supra, by statute, we decline to apply to Spano’s case the Johnson rule of counting multiple convictions on the same day separately as long as they arise out of different courses of action, since his relevant guilty pleas occurred before 10/19/04. Although the 2005 amendment did not speak of prospective or retroactive application, the statute now plainly states that multiple convictions occurring on the same day before the Johnson decision (10/19/04) are to be counted as one. In light of the clearly-stated legislative intent to overrule Johnson, we conclude Spano was improperly adjudicated a fourth felony offender.

Apparently, the legislature has created two schemes; the Mims rule applies to multiple guilty pleas on the same day prior to 10/19/04 (date of Johnson) and to multiple guilty pleas on the same day after 8/15/05, the effective date of the 2005 amendment to 15:259.1. Even though overruled, the Johnson rule will apparently apply to multiple guilty pleas on the same day made between 10/19/04 and 8/15/05, an anomalous situation. Until we receive contrary instructions from the supreme court or the legislative process, we find that multiple convictions on the same day occurring before 10/19/04 are to be counted as one conviction for purposes of habitual offender adjudications.

We note that for Spano, this result may be a distinction without a meaningful difference, as La. R.S. 15:529.1(A)(l)(b) provides, in pertinent part:

|14If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

The predicate offense of aggravated battery (Docket # 176,206 of the First JDC) and the instant offense, second degree battery (Docket # 236,880 of the First JDC) are crimes of violence under La. R.S. 14:2(13), and the predicate offense of simple burglary (Docket # 189,413 of the First JDC) is a crime punishable by imprisonment for 12 years. Hence, under “or any combination of such crimes,” Spa-no was at least a third felony habitual offender earning a sentence to life imprisonment without benefits as per La. R.S. 15:529.1(A)(l)(b)(ii).

Because we concluded Spano was incorrectly adjudicated a fourth felony offender, we pretermit addressing Spano’s other complaints.

CONCLUSION

For the foregoing reasons, we affirm the conviction. We vacate Spano’s adjudication as a fourth felony habitual offender, as well as his sentence thereunder, and remand this matter for further proceedings.

CONVICTION AFFIRMED. ADJUDICATION AND SENTENCING VACATED. REMANDED FOR FURTHER PROCEEDINGS.

BROWN, C.J., concurs and dissents with written reasons.

BROWN, Chief Judge,

concurring and dissenting.

IU agree with affirming defendant’s conviction but see no point in vacating the sentence and remanding for further proceedings. The majority opinion states, “[Hjence, under ‘or any combination of such crimes,’ Spano was at least a third felony habitual offender earning a sentence of life imprisonment without benefits as per La. R.S. 15:529.1(A)(l)(b)(ii).” Whether a third or fourth felony offender, a mandatory life sentence is prescribed.

The mandatory minimum punishments provided for by the multiple offender statute are presumed constitutional. Where there is a mandatory sentence under a statute that is constitutional, there is no need for the trial court to justify, under article 894.1, a sentence it is legally required to impose. State v. Koon, 31,177 (La.App. 2d Cir.02/24/99), 730 So.2d 503; State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992). A life sentence was given to Spano by the trial court. The majority has found that Spano is at least a third felony offender and subject to a mandatory life sentence. We should simply affirm the life sentence imposed.

      . The question of sufficiency of evidence is properly raised by a motion for post-verdict judgment of acquittal. State v. Howard, 31,-807 (La.App. 2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190.
      The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La. 11/14/03), 858 So.2d 422.
      The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La. 11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

      . This area of the law is quite confusing, but at least the state’s brief has alerted us that there is a dispute on this issue.

      . We recognize that reasonable differences of opinion as to the correct application of this aspect of the Habitual Offender Law exist. See Chief Judge Brown’s dissent in State v. Williams, 40,866 (La.App. 2d Cir.4/26/06), 930 So.2d 203.


author: SULLIVAN, Judge.

text:
    Howard T. McCLURE v. CITY OF PINEVILLE, et al.
    No. 05-1460.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 2, 2006.
    Gregory E. Bodin, Baton Rouge, LA, for Defendant/Appellee, Louisiana Workers’ Compensation Corporation.
    Randall B. Keiser, Alexandria, LA, for Defendant/Appellant, Risk Management, Inc.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

| defendant-appellant, Louisiana Workers’ Compensation Corporation (LWCC), moves to consolidate two appeals that are before this court. For the reasons given below, we deny appellant’s motion to consolidate.

This case arises out of the workers’ compensation claim for a retired fireman. When Howard McClure retired from the Pineville Fire Department, LWCC insured the City of Pineville (the City) for workers’ compensation coverage. After McClure retired and prior to his death, the City secured insurance coverage from the Louisiana Municipal Risk Management Agency (LMRMA). Risk Management, Inc. (RMI) is the administrator of claims for LMRMA.

Following Mr. McClure’s death, his widow, Mary McClure, filed a claim for death benefits with Office of Workers’ Compensation. In her claim, Mrs. McClure named the City, RMI, and LWCC as defendants. During the course of litigation, RMI filed a motion for summary judgment seeking to have plaintiffs’ claims against it dismissed. In support of RMI’s motion, it submitted an affidavit attesting to the fact that no coverage between RMI and the City existed at the time of Mr. McClure’s retirement. Following a hearing, the trial court granted the motion dismissing plaintiffs’ claims against RMI.

Following the ruling, the City filed a motion for new trial and a third party demand against RMI. The trial court denied the City’s motion for new trial and granted RMI’s exception of no cause of action regarding the City’s third party demand. The City filed an appeal seeking review of the rulings on the motion for summary judgment, the motion for new trial, and the exception of no cause of action. The appeal was assigned docket number 05-1460.

|2Meanwhile, the proceedings in the trial court moved forward without RMI. After a trial on the merits, the trial court found in favor of plaintiffs and against the City and LWCC. Both defendants appealed the judgment on the merits, and that appeal has been assigned docket number 06-279. LWCC has filed this motion to consolidate the two appeals, and the City has joined in the motion to consolidate. RMI, on behalf of LMRMA, filed an opposition to the motion to consolidate. In its opposition, RMI presented several reasons why this court should deny the motion to consolidate the appeals.

Notwithstanding the arguments presented by RMI, this court expresses its own reason for denying LWCC’s motion to consolidate. Namely, the issues presented in each appeal are unrelated. Thus, hearing the appeals together would not be judicially efficient, as LWCC suggests. The judgments challenged in 05-1460 are concerned with the City’s third party demand against RMI and the dismissal of all claims against RMI on summary judgment. On the other hand, the ruling challenged in 06-279 cast the City and LWCC in judgment for death benefits and attorney fees. In short, combining the two appeals will only confuse the issues in one or both of the appeals. Accordingly, we deny appellant’s motion to consolidate.

MOTION TO CONSOLIDATE DENIED.