text:
    Hubert ROUGEAU, Jr. v. GOTTSON CONSTRUCTION CO., et al.
    No. 10-1082.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 2011.

      Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellee, Hubert Rougeau, Jr.
    Jeremy Berthon, Johnson, Stilner & Rahman, Baton Rouge, LA, for Defendants/Appellants, Louisiana Workers’ Compensation Corp., Gottson Construction Co.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

Lin this workers’ compensation matter, the defendants/appellants ask us to reverse the awards to plaintifflappellee of “reasonable and necessary medical treatment,” penalties and attorney fees, and the amount of attorney fees, $12,600.00. For the reasons that follow, we affirm.

FACTS

Hubert Rougeau was employed by Gott-son Construction Company as a roustabout-mechanic on February 23, 2009, when the drive shaft from a truck fell from a jack onto his left shoulder and elbow. Gottson denied the accident occurred as Rougeau claimed and that he was injured. Rougeau pursued a disputed claim for compensation against Gottson. After trial, the WCJ found that Rougeau was injured as he claimed. Rougeau was awarded temporary total disability benefits of $393.09 per week beginning February 23, 2009, “reasonable and necessary medical treatment,” a penalty of $2,000.00 for Gott-son’s failure to pay weekly indemnity benefits, a $2,000.00 penalty for failure to pay Rougeau’s medical expenses, plus attorney fees of $12,600.00.

ASSIGNMENTS OF ERROR

Gottson and its insurer assign three errors: 1) the award of future medical expenses; 2) the award of penalties and attorney fees; and, 3) the amount of attorney fees.

ANALYSIS

Gottson maintains that an employer’s liability for medical expenses does not arise until they are incurred. Rougeau counters that the employer is liable for all necessary medical and non-medical treatment, pursuant to La.R.S. 23:1203. He concedes that a workers’ compensation claimant is not entitled to an award of future |2medical expenses, but that the right to pursue expenses is always reserved to the claimant. In this case, though, Rougeau disagrees with Gottson that the effect of the judgment is to render Gottson liable for future medical expenses. Nevertheless, Rougeau disagrees that the judgment should be altered because an employer not subject to a final, nonap-pealable, judgment who refuses medical treatment is not subject to penalties under La.R.S. 23:1201(G) but rather under La. R.S. 23:1201(F); further, that the deletion of this provision of the judgment would force an unnecessary delay in having his claim for denied benefits heard by a WCJ; and lastly, that reserving the right to seek reimbursement only provides partial relief to the injured employee. Rougeau cites Wilson v. Ebasco Serv., Inc., 393 So.2d 1248 (La.1981), for the proposition that claims for future medical treatment have been allowed. Rougeau distinguishes between claims for future medical treatment and claims for future medical expenses.

In Wilson, one of the principal issues involved the employer’s responsibility to issue a letter of financial responsibility to a pain clinic. Without the letter, the clinic would not admit Wilson into its pain unit program in which she hoped to learn pain coping skills. When clinic personnel contacted the employer’s insurer, they were told that no such letter would be issued. Wilson then filed suit to force the issuance. The trial court sided with the employer’s contention that the petition failed to state a cause of action. A long line of jurisprudence had held that liability for an | oemployee’s medical expenses only arises as those expenses are accrued.

When the court of appeal affirmed the trial court’s ruling, Wilson sought writs from the Louisiana Supreme Court, which granted her application. The supreme court reversed, finding that the refusal to issue the letter of financial responsibility amounted to a refusal to furnish treatment pursuant to La.R.S. 23:1203.

In the present matter, the WCJ’s judgment awards Rougeau reasonable and necessary medical treatment. This awards him nothing more than what is reserved to him as a matter of law. The right to seek reimbursement for reasonable and necessary treatment is provided for by La.R.S. 23:1203. According to La.Code Civ.P. art. 1841, a judgment may award any relief to which the parties are entitled. The law reserves the right to seek reimbursement for expenses of reasonable and necessary medical treatment. La.R.S. 23:1203.

Gottson complains of the award of penalties and attorney fees. A workers’ compensation claimant is entitled to attorney fees if an employer or insurer acts arbitrarily, capriciously, and without probable cause in withholding or terminating benefits; withholding benefits is not arbitrary and capricious when based on competent medical evidence. Courville v. Omni Drilling, 96-174 (La.App. 3 Cir. 7/10/96), 676 So.2d 861, writ denied, 96-2073 (La.11/8/96), 683 So.2d 276.

The WCJ found — and the evidence demonstrated — that an incident involving Rougeau did occur on February 23, 2009. The details of the incident are disputed, but the essentials are not. Rougeau was assisting a mechanic, Brian Fogleman, remove a transmission from a truck. The driveshaft, which weighed 150 to 200 pounds, began to fall. Rougeau redirected the driveshaft from his chest and face with his left hand. In avoiding the shaft, Roug-eau injured his elbow.

14Rougeau claimed that he notified Fo-gleman of the incident. Fogleman, whose testimony was presented by deposition, asserted that he did not learn of Rougeau’s injury until two days later. That same day, February 25, Rougeau went to the emergency room at Jennings American Legion Hospital. The attending physician, Dr. David Hardey, noted- that Rougeau’s elbow was swollen. Rougeau was diagnosed "with a contusion. The report stated that Rougeau was somewhat agitated when told that his elbow had not been fractured.

On February 27, Rougeau saw Dr. Paul B. Stringfellow of Crowley, Louisiana. Dr. Stringfellow noted a history consistent with Rougeau’s version of the accident. Dr. Stringfellow’s records reflect his observation of a prominence of the left epi-condyle. He diagnosed Rougeau with tendonitis. At the emergency room at Lake Charles Memorial Hospital on April 11, Rougeau was diagnosed with left epicon-dylitis.

Rougeau sought no further treatment until he saw Dr. Robert Morrow, a Lafayette, Louisiana, orthopedic surgeon, on June 4, 2009. Dr. Morrow diagnosed Rougeau with post-traumatic left shoulder discomfort, left lateral and medial epicon-dylitis, and left upper extremity complex pain syndrome. He recommended a referral to a pain management specialist. He deemed Rougeau incapable of work for at least two months, from June 4 to August 4, 2009. Rougeau did not return to Dr. Morrow, apparently because Gottson refused to authorize a further visit.

However, Rougeau did return to the emergency room at Lake Charles Memorial Hospital on June 20 with what those records describe as chronic elbow and shoulder pain. The personnel told Roug-eau to follow up with his primary care physician and with pain management.

I sThe claims adjuster, with Louisiana Workers’ Compensation Corporation, Gott-soris carrier, testified that she decided to deny Rougeau’s claim because her recorded statements of Rougeau, his co-workers, and her review of the medical records convinced her that Rougeau was not injured in the incident. In brief, Gottson points to a number of inconsistencies that it contends justified questioning Rougeau’s veracity.

According to Nelson v. Roadway Exp. Inc., 588 So.2d 350, 355 (La.1991), “[a]n unjustified belief that an employee’s injury did not result from an accident does not excuse failure to pay worker’s compensation benefits.” Penalties are stricti jur-is and should be imposed only if the facts clearly negate good faith and just cause in connection with the refusal to pay. Guillory v. Travelers Ins. Co., 294 So.2d 215 (La.1974); Duncan v. State, 556 So.2d 881 (La.App. 2 Cir.1990). Nevertheless, the WCJ has great discretion to award or deny penalties and attorney fees; his decision will not be disturbed absent abuse of that discretion. Id.; McKenzie v. City of Bossier City, 585 So.2d 1229 (La.App. 2 Cir.1991). In the face of objective findings of injury by both Dr. Hardey at the emergency room at American Legion and Dr. Morrow in his examination of Rougeau, it was unreasonable for Gottson to deny that Rougeau was injured, absent indication of some other cause of the objective findings. By no means does the WCJ’s award of penalties and attorney fees in the face of such evidence represent an abuse of his discretion.

Gottson also complains that the WCJ awarded Rougeau an excessive amount of attorney fees. Rougeau’s counsel presented the WCJ with an affidavit attesting to 56 hours of work he dedicated to Rougeau’s cause. The $12,600.00 awarded Rougeau would reflect an hourly rate of $225.00 had Rougeau’s counsel undertaken |f,the work on such a basis. The court of appeal reviews the amount of an attorney fee award to determine whether the WCJ abused his discretion in awarding an amount that is unreasonable. Broussard v. West-Cal Const. Co., Inc., 676 So.2d 743 (La.App. 3 Cir.1996). This amount seems high, but not abusively so.

Rougeau answered the appeal and asks for additional attorney fees for work performed on appeal. We have long held that a worker who successfully defends and workers’ compensation judgment on appeal is entitled to additional attorney fees. Therefore, we award Rougeau an additional $3,000.00 in attorney fees.

CONCLUSION

That the judgment includes an award of “reasonable and necessary medical treatment” merely affirms Rougeau’s entitlement to such treatment. The judgment does not award Rougeau future medical expenses. The WCJ did not abuse his discretion in awarding Rougeau penalties and attorney fees, nor in the amount of attorney fees he awarded. The judgment of the WCJ is affirmed. Plaintiff/appellant, Hubert Rougeau, is awarded an additional $3,000.00 in attorney fees. All costs of this appeal are taxed to defendants/appellants, Gottson Construction Company and Louisiana Workers’ Compensation Corporation.

AFFIRMED.

      . ”G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.”


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Enola WILTZ, et ux. v. ABC INSURANCE COMPANY, et al.
    No. CA 10-1107.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 2011.

      James L. Pate, Sara Rodrigue, Laborde & Neuner, Lafayette, LA, for Defendants/Appellees, City of Breaux Bridge, Illinois Union Insurance Company.
    James Harvey Domengeaux, Domen-geaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiffs/Appellants, Enola Wiltz, Wallace Wiltz.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

_J_jEnola Wiltz and her husband Wallace filed suit against the City of Breaux Bridge and its insurer for injuries she sustained when she stumbled over a one-fourth to one-half inch beveled crack in the sidewalk as she was walking toward City Hall. The trial court found that there was no unreasonably dangerous condition in the sidewalk and that there was no evidence to demonstrate that the City had knowledge about the crack in the sidewalk. The Wiltzes appealed.

FACTS

On June 13, 2005, Mr. and Mrs. Wiltz brought their son Hubert to City Hall so he could renew his driver’s license. He had not been driving due to a surgical procedure. They arrived before 8:00 a.m. Mr. Wiltz parked on the side next to the main entrance. The door was not open, so Mrs. Wiltz and Hubert walked around to another entrance near the police station. Meanwhile, Mr. Wiltz went to get the car to move closer to the police station entrance.

Hubert was walking behind his mother on the sidewalk when she stumbled but did not fall. She stopped walking and told Hubert that she had hurt her back and leg when she stumbled. They noticed the crack in the sidewalk which they claim caused sixty-seven-year-old Mrs. Wiltz to stumble. As a result of this incident, Mrs. Wiltz has incurred medical bills in the amount of $95,095.61.

The Wiltzes filed suit against the City and its insurer, Illinois Union Insurance Company. A bench trial was held on December 4, 2009. The trial court took the matter under advisement and issued written reasons for ruling on January 13, 2010. The trial court ruled that “[pjlaintiff did not submit sufficient evidence to demonstrate that the crack in the sidewalk created an unreasonable risk of harm.” The trial court further found that “there was no evidence to demonstrate that the City knew or should |2have known about the crack in the sidewalk.”

The Wiltzes appealed, claiming that the trial court was clearly wrong in failing to find that “a beveled cracked sidewalk, covered and disguised by grass growth on a major sidewalk leading directly into the main organ of commerce for the City causing plaintiffs accident and injuries did not create an unreasonable risk of harm.”

DISCUSSION

Whether the beveled crack in the sidewalk presented an unreasonable risk of harm is subject to the manifest error standard of review. Biagas v. City of Eunice, 98-108 (La.App. 3 Cir. 10/21/98), 721 So.2d 491, writ denied, 98-2886 (La.1/15/99), 736 So.2d 209. Therefore, after reviewing the record, we must find that there is no factual basis for the trial court’s ruling and that the finding was clearly wrong. Id. The issue is whether the trial court’s conclusion was reasonable. Id.

Louisiana Revised Statutes 9:2800 provides for the liability of public entities caused by the condition of things within its care and custody. The Wiltzes had to prove that (1) the City owned or had custody of the sidewalk that caused the damage; (2) the sidewalk was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect or unreasonable risk of harm and failed to take corrective action within a reasonable time; and, (4) Mrs. Wiltz’s injuries were caused by the defect. Pryor v. Iberia Parish Sch. Bd., 10-23 (La.App. 3 Cir. 6/16/10), 42 So.3d 1015.

“Under these provisions, the City, as the owner of a public right of use over the sidewalk, has the duty to ensure the public’s use and possession of the sidewalk.” Graham v. City of Shreveport, 44,-994, p. 4 (La.App. 2 Cir. 1/27/10), 31 So.3d 526, 530, writ denied, 10-440 (La.4/30/10), 34 So.3d 294.

[A] municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonable safe, but the maintaining of them in [.^perfect condition is not necessary. To render it liable in damages the defect complained of must be dangerous or calculated to cause injury.
For determining what is a dangerous defect in sidewalk ... there is no fixed rule; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question of whether or not the walk was maintained in a reasonable (sic) safe condition for persons exercising ordinary care and prudence.

Boyle v. Bd. of Sup’rs, Louisiana State Univ., 96-1158, p. 4 (La.1/14/97), 685 So.2d 1080, 1082 (quoting White v. City of Alexandria, 216 La. 308, 314-15, 43 So.2d 618, 620 (1949)).

In determining whether a thing creates an unreasonable risk of harm, all relevant moral, economic, and social considerations must be weighed. Boyle, 685 So.2d 1080.

In Boyle, the supreme court found that a one-half inch to over one inch crack which was located in a high traffic area did not present an unreasonable danger. In Biagas, 721 So.2d 491, this court found that a one to one-and-a-half inch “lip” did not present an unreasonable risk of harm.

The Wiltzes argue that the one-fourth to one-half inch crack in the present case presented an unreasonable risk of harm because it was significantly covered with grass in a highly-traveled area. The Wiltzes also argue that the trial court incorrectly found that the City’s sidewalks are inspected on a regular basis.

Jack Delhomme, mayor of the City, testified that he was told about the accident when he got to work that morning. He had not had any complaints about the sidewalk before the accident and was not aware of any accidents before Mrs. Wiltz’s incident. After the accident, he contacted the director of public works, who smoothed out the crack and filled it in. Mr. Delhom-me further testified that the City does not employee anyone specifically to check sidewalks.

14Rita George, an assistant city clerk who has worked for the City for thirty-three years, testified that she had not heard of anyone complain about cracks in the sidewalk.

Pictures of the crack were taken on the day of the incident and were introduced into evidence. There is some type of weed growing out of the middle of the crack, but the edges of the crack are visible.

We cannot say the trial court committed manifest error in concluding that this crack was not unreasonably dangerous. Pictures indicate that the weeds only covered a small part of the crack. Furthermore, weeds growing in the middle of a sidewalk is an indication in itself that there is an open area in that part of the sidewalk. There was no testimony whatsoever that anyone had complained about this crack in the sidewalk. As soon as the City was notified of this incident, it immediately repaired the crack.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Enola and Wallace Wiltz.

AFFIRMED.


author: McClendon, j.

text:
    Eugene MILTON v. Brenda ACKLIN, Record Custodian, David Wade Correctional Center and James LeBlanc, Secretary, Louisiana Department of Public Safety & Corrections.
    No. 2010 CA 1162.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.
    Rehearing Denied March 4, 2011.
    Lugene Milton, David Wade Correctional Center, Homer, Louisiana, for Plaintiff/Appellee, In Proper Person.
    Susan Wall Griffin, Baton Rouge, Louisiana, for Defendant/Appellant, Louisiana Department of Public Safety & Corrections.
    Before WHIPPLE McDONALD and McClendon, jj.
   McClendon, j.

|2The Louisiana Department of Public Safety and Corrections (the Department) appeals a district court judgment reversing the Department’s determination that an inmate was not eligible to receive any diminution in his sentence, often referred to as “good time.” For the reasons that follow, we reverse the district court judgment and reinstate the Department’s decision.

FACTS AND PROCEDURAL HISTORY

The appellee, Lugene Milton, is an inmate currently housed at David Wade Correctional Center (DWCC). On August 18, 1981, he was sentenced to serve three years at hard labor in the Department’s custody for the felony of simple burglary under Caddo Parish Docket Number 116,-530. Milton satisfied this sentence and was released from custody.

On May 10, 1984, a jury found Milton guilty of the charge of simple burglary of an inhabited dwelling under Caddo Parish Docket Number 125,746. The Caddo Parish District Attorney then filed a habitual offender bill, and on July 17,1984, the trial court sentenced Milton to serve twenty-four (24) years at hard labor. Milton served approximately one-half of his sentence and was released on good-time parole supervision, owing a balance of eleven (11) years, six (6) months, and fourteen (14) days to be served under parole supervision.

On February 11, 2002, Milton was arrested and charged with illegal possession of stolen things. Milton’s parole was subsequently revoked and he was returned to the Department’s custody to serve the remainder of his prior sentence — eleven (11) years, six (6) months, and fourteen (14) days. Additionally, for the offense of illegal possession of stolen things, Milton received a sentence of one year (Caddo Parish docket number 221,963).

Milton subsequently initiated an administrative remedy procedure (ARP), assigned number DWCC-2008-1439, wherein he urged that he was being denied the right to earn good time improperly because his present conviction was not for an offense enumerated in LSA-R.S. 15:571.3(0(1), and, thus, does not | spreclude good time eligibility under LSA-R.S. 15:571.3. Administrative relief was denied at all steps of the ARP process on the basis that Milton had a prior conviction of simple burglary, which was an offense enumerated in LSA-R.S. 15:571.3(0(1) and which served as the basis for the denial of good time.

Milton then sought judicial review in the 19th Judicial District Court. Following a hearing on the merits, Commissioner John M. Smart, Jr. found that Milton had been convicted of simple burglary of an inhabited dwelling under Caddo Parish Docket Number 125,746, which the Commissioner noted was neither an enumerated offense specifically listed under LSA-R.S. 15:571.3 nor was it a crime of violence under LSA-R.S. 14:2(6). Because LSA-R.S. 15:571.3 must be read strictly, the Commissioner recommended “that the final administrative decision rendered in this matter be reversed on judicial review based on the finding that the final decision rendered by the Department is arbitrary and manifestly erroneous as provided by R.S. 15:1177(A)(9).” The Commissioner’s report did not address the 1981 conviction.

The Department then filed a traversal to the Commissioner’s recommendation, urging the district court to note that the enumerated crime of violence utilized by the Department in denying diminution of sentence was Milton’s initial 1981 sentence for simple burglary and not the revoked 1984 sentence for simple burglary of an inhabited dwelling. However, the district court adopted the Commissioner’s recommendation, granted Milton’s request for judicial review, found the Department’s decision to be arbitrary and manifestly erroneous, and cast the Department with all costs.

The Department has appealed, asserting that the district court erred in failing to apply the1 prior conviction of simple burglary in conjunction with the habitual offender adjudication to deny Milton diminution of sentence eligibility.

DISCUSSION

LThe Department urges that Milton is not entitled'to diminution- in his sentence by operation of law. The Department notes that LSA-R.S. 15:571.3 prohibits the earning of good time in certain cases. Specifically, LSA-R.S. 15:571.3(0 provides, in pertinent part:

Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if:
(1) The inmate has been convicted one or more times under the laws of this state of any one or more of the following crimes:
(j) Simple burglary.
⅝ * ‡
(2) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1, and
(3) The inmate’s last conviction for the purposes of the Habitual Offender Law, was for a crime: (a) Committed during the period beginning September 16, 1975 through September 9, 1977, inclusive of both dates, and the sentence of the court specifically denies eligibility for diminution of sentence, or (b) committed on or after September 10,1977.

In Spellman v. Stalder, 98-0725, p. 4 (La.App. 1 Cir. 4/1/99), 740 So.2d 671, 674, writ granted on other grounds, 99-1801 (La.10/8/99), 750 So.2d 172, this court recognized that all three subsections of LSA-R.S. 15:571.3(0 must be present in order to deny an inmate the opportunity to earn good time. This court further noted that “[a]ny prior or instant conviction listed in section 571.3 C(l) may be used to meet the requirements of section 571.3 C.” Spell-man, 980725 at p. 5, 740 So.2d 674.

The Department contends that Milton has properly been denied eligibility to earn diminution of sentence because all three subsections of LSA-R.S. 15:571.3(0 have been met. The Department avers that Milton has a prior conviction in 1981 for simple burglary — an enumerated offense, has been adjudicated as a habitual offender, and his last conviction for the purpose of the habitual offender law was on or after September 10,1977.

In opposition, Milton contends that the sentencing judge’s comments at the 1984 hearing reflect that his prior conviction in 1981 was akin to simple [¡¡burglary of an inhabited dwelling rather than simple burglary. Specifically, Milton points out that during his sentencing in 1984, the trial court noted:

The District Attorney then moved to file a bill for a multiple offender hearing. We had a hearing on that matter on July 6, and the Court learned that you had been previously sentenced for burglary of an apartment in the 7800 block of Youree Drive. And as a result, you were given a three-year hard labor sentence for that charge on August 18, 1981.

Milton asserts that the sentencing court in 1984 recognized that he had been convicted previously for a “similar crime” to the crime of his 1984 conviction — that of Simple Burglary of an Inhabited Dwelling. Milton contends that although the Department’s records reflect that he was convicted of simple burglary in 1981, at no point during the entirety of the judicial review hearing in this matter did the Department attempt to obtain documentary evidence to refute the “implication” offered by the sentencing judge in 1984 that Milton’s 1981 conviction was for something other than that of Simple Burglary of an Inhabited Dwelling.

We find no ambiguity between the sentencing transcript related to the 1984 conviction and the Department’s records reflecting that Milton had been convicted of simple burglary in 1981. We recognize, as did the district court in 1984, the similar nature of the crimes for which Milton had been convicted in 1981 and 1984. See LSA-R.S. 14:62 and 14:62.2. Nevertheless, the record reflects that Milton was convicted of a violation of LSA-R.S. 14:62, or simple burglary, under docket number 116,530 in 1981. Accordingly, Milton is statutorily barred from earning good time because: 1) he was convicted of simple burglary — an enumerated offense under LSA-R.S. 15:571.3(0(1)0) — in 1981, 2) he has been adjudicated as a habitual offender, and 3) his last conviction for the purpose of the habitual offender law occurred after September 10,1977.

1 .CONCLUSION

For the foregoing reasons, the judgment of the district court is reversed. The Louisiana Department of Public Safety and Corrections’ decision to deny Milton’s request for diminution in his sentence is reinstated. Costs of this appeal are assessed to appellee, Lugene Milton.

REVERSED AND RENDERED.

      . We note that the caption erroneously refers to Mr. Milton as "Eugene Milton.”

      . Because it is an inmate suit, this case was assigned to a commissioner to conduct all proceedings and make a recommendation to the appropriate district court judge. This is a procedure followed in the Nineteenth Judicial District Court to handle the large volume of lawsuits filed by inmates under LSA-R.S. 15:1177(A). See LSA-R.S. 13:713.

      . In reaching this conclusion, we do not address whether the legislature intended to include Simple Burglary of an Inhabited Dwelling within Simple Burglary under LSA-R.S. 15:571.3(C)(l)(j).


author: WHIPPLE, J.

text:
    Rosetta NELSON v. TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA and Pointe Coupee Parish School Board.
    No. 2010 CA 1190.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.

      Rosetta Nelson, New Roads, LA, Plain-tiffAppellant, in proper person.
    John L. Stone, III, Baton Rouge, LA, for Defendant/Appellee, Teachers’ Retirement System of Louisiana.
    ■ Wayne T. Stewart, Baton Rouge, LA, for Defendant/Appellee, Pointe Coupee Parish School Board.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

[2This is an appeal by plaintiff from a judgment of the trial court which maintained defendants’ exceptions of prescription and dismissed plaintiffs claims with prejudice. For the following reasons, we dismiss the appeal as untimely.

PROCEDURAL HISTORY

On April 23, 2009, plaintiff, Rosetta Nelson, filed suit against Teachers’ Retirement System of Louisiana (“the TRSL”) and the Pointe Coupee Parish School Board (“the PCPSB”), contending that defendants were indebted to her for certain retirement benefits, which she had allegedly been denied since her retirement in 1996. She alleged that she had been a teacher employed by the Pointe Coupee Parish School System from August 24, 1972 until March 23, 1979, and that she was then employed at the Louisiana Technical College and, thus, was a member of the TRSL from March 26, 1979 until her retirement on June 30,1996.

Plaintiff further alleged that she had been involved in “an ongoing dispute” with both agencies regarding the appropriate credit that should have been applied for her years of service with the PCPSB and as a member of the TRSL, and that she was given only 23.77 years of credit when she should have been given credit for 24 years of service. In her petition, plaintiff averred that amicable demand was made on numerous occasions to both defendants, but the appropriate credit had not been issued. Thus, plaintiff sought judgment in her favor for all retirement benefits to which she was allegedly entitled for her entire employment from the TRSL and the PCPSB.

Thereafter, the TRSL and the PCPSB each filed peremptory exceptions raising the objection of prescription, contending that a claim for additional compensation in retirement benefits is governed by the three-year | Sprescriptive period set forth in LSA-C.C. art. 3494. Following a December 14, 2009 hearing on the exceptions, the trial court signed a judgment dated January 4, 2010, maintaining the exceptions of prescription and dismissing plaintiffs suit with prejudice. Notice of judgment was mailed to the parties on the same day the judgment was signed, ie., January 4, 2010.

Subsequently, on January 14, 2010, plaintiff filed a motion for new trial. In opposition to the motion for new trial, both the PCPSB and TRSL argued, among other things, that the motion for new trial was untimely, in that it was filed eight days, excluding legal holidays, after the mailing of notice of judgment. A hearing on the motion was held on April 19, 2010, and at the hearing, the trial court ruled that the issues raised by plaintiff in support of her motion did not form a basis for the grant of a new trial. Accordingly, by judgment dated April 28, 2010, the trial court denied plaintiffs motion for new trial.

Then, on May 18, 2010, plaintiff filed a motion for appeal, and on May 24, 2010, plaintiff filed an amended motion for appeal, with the only apparent difference being that a different address for plaintiff, together with two phone numbers, was hand-written on the amended motion. On June 4, 2010, the trial court signed an order, granting plaintiffs appeal.

LOn August 10, 2010, this court ordered the parties to show cause by briefs as to whether plaintiffs appeal should or should not be dismissed, in that the record appeared to indicate that the motion for new trial and, thereafter, the motion for appeal were filed untimely. All parties responded to this court’s order by filing briefs, and, thereafter, by order dated September 27, 2010, this court’s rule to show cause was referred to the panel to which the appeal was assigned. Accordingly, we first address the issue of whether plaintiffs appeal should or- should not be dismissed as untimely.

DISCUSSION

With regard to the timeliness of plaintiffs motion for new trial and, consequently, of her motion for appeal, LSA-C.C.P. arts. 1974, 2087, and 2123 govern the pertinent statutory delays. Louisiana Code of Civil Procedure article 1974 provides that the delay for applying for a -new trial shall be seven days, exclusive of legal holidays, with the delay commencing to run on the day after the clerk has mailed the notice of judgment required by LSA-C.C.P. art. 1913. Howard v. Hercules-Gallion Co., 417 So.2d 508, 5Q9 (La.App. 1st Cir.1982). Once the seven-day period for filing a motion for new trial has passed, and no motion for new trial is filed or said motion is untimely filed, the judgment becomes final, and appellate delays begin to | srun. LSA-C.C.P. art. 2087(A)(1) & LSA-C.C.P. art. 2123(A)(1); Horton v. Mayeaux, 2005-1704 (La.5/30/06), 931 So.2d 338, 342; Bellco Electric, Inc. v. Miller, 08-785 (La.App. 5th Cir.3/24/09), 10 So.3d 797, 799, writ denied, 2009-0863 (La.5/29/09), 9 So.3d 170.

Moreover, the untimely filing of a motion for new trial does not interrupt the delay for timely taking an appeal even if the trial court does not recognize the motion as untimely. See Succession of Blythe, 466 So.2d 500, 501 (La.App. 5th Cir.), writ denied, 469 So.2d 985 (La.1985). The actions of the trial court cannot circumvent the clear deadlines established by law.

In this case, the trial court’s judgment maintaining the exceptions of prescription and dismissing with prejudice plaintiffs case was signed on January 4, 2010, and notice of judgment was mailed to the parties on that same date. Thus, the seven-day time frame within which to file a motion for new trial commenced on January 5, 2010, and expired on January 13, 2010. Accordingly, plaintiffs motion for new trial, which was filed on January 14, 2010, was untimely, had no legal effect, and did not suspend the appeal delays. See Howard, 417 So.2d at 510; Bellco Electric, Inc., 10 So.3d at 799.

Rather, because no motion for new trial was filed before the expiration of the seven-day period for filing said motion, the trial court’s January 4, 2010 judgment became final, and the appeal delays began to run. See Horton, 931 So.2d at 342. Thus, the sixty-day delay for taking a devolutive appeal commenced to run on January 14, 2010, and expired on |riMarch 15, 2010. See Howard, 417 So.2d at 510. Plaintiffs motions for appeal, filed on May 18, 2010 and May 24, 2010, were likewise untimely. Although we recognize that appeals generally are favored by law, because plaintiff failed to appeal within the delays allowed by law, this court is without jurisdiction to hear this appeal. LSA-C.C.P. art. 2087; Howard, 417 So.2d at 510. Accordingly, without reaching the merits of plaintiffs appeal, we are constrained to dismiss the appeal as untimely.

CONCLUSION

For the above and foregoing reasons, plaintiffs appeal is dismissed at plaintiffs costs.

APPEAL DISMISSED.

      . On the same date that she filed her motion for new trial, plaintiff filed a motion to remove her counsel of record. That motion was granted by the trial court on January 20, 2010.

      . In both motions for appeal, plaintiff apparently sought to appeal from the January 4, 2010 judgment as well as the judgment denying her motion for new trial, but the "January 4, 2010” judgment date on the motions is scratched through. It is not apparent from the record who scratched through these dates.
      To the extent that the trial court may have attempted to limit plaintiff’s appeal to an appeal of its April 28, 2010 judgment denying plaintiff's motion for new trial, we note that the denial of a motion for new trial is an interlocutory judgment, which is not independently appealable in the absence of an appeal of the underlying judgment on the merits. See LSA-C.C.P. art. 2083 and Moran v. G & G Construction, 2003-2447 (La.App. 1st Cir. 10/29/04), 897 So.2d 75, 83 n. 4, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148. Thus, without addressing the legal effect, if any, of the trial court's ruling on a motion for new trial that we determine herein was without legal effect, we note that the judgment denying that motion would not be appealable absent an appeal of the January 4, 2010 judgment maintaining the exceptions of prescription and dismissing plaintiff's suit.
      Notably, however, an appeal of a denial of a motion for new trial will be considered as an appeal of the judgment on the merits, when it is clear from the appellant's brief that the appeal was intended to be on the merits. Carpenter v. Hannan, 2001-0467 (La.App. 1st Cir.3/28/02), 818 So.2d 226, 228-229, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153. In her appellate brief, plaintiff challenges only the trial court’s January 4, 2010 judgment maintaining the exceptions of prescription. Thus, it is clear that plaintiff truly intended to appeal the January 4, 2010 judgment that dismissed her suit,.and we consider her appeal as an appeal of that judgment.

      . Article 1913(A) provides that "[ejxcept as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.”

      . If, on the other hand, a motion for new trial is timely filed, the appeal delays do not begin to run until the date of mailing of notice of the denial of the motion for new trial. LSA-C.C.P. art. 2087(A)(2) & LSA-C.C.P. art. 2123(A)(2); Horton v. Mayeaux, 2005-1704 (La.5/30/06), 931 So.2d 338, 342


author: CARTER, C.J.

text:
    Joe W. MIDDLETON v. LIVINGSTON TIMBER, INC.
    No. 2010 CA 1203.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.

      Joe W. Middleton, Hammond, LA, Plain-tiffiAppellant, Pro Se.
    Michael W. Whitehead, Livingston, LA, for Defendant/Appellee, Livingston Timber, Inc.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   CARTER, C.J.

| sPlaintiff/appellant, Joe W. Middleton, appeals an Office of Workers’ Compensation (OWC) judgment sustaining the peremptory exception of res judicata, filed by defendant/appellee, Livingston Timber, Inc. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

The instant case arose from an injury sustained by plaintiff on May 12, 2005, while in the course and scope of his employment. Plaintiff was working as a saw operator on a logging job when a .skidder with a log attached went in reverse, causing the log to roll onto plaintiffs right leg and fracture his tibia. Plaintiff was treated and paid workers’ compensation indemnity and medical benefits relative to his leg injury through defendant’s workers’ compensation carrier.

In August 2006, plaintiff filed a disputed claim for compensation claiming, among other things, “defendant failed to pay or timely pay indemnity benefits at the proper rate, failed to pay/authorize or timely pay/authorize medical expenses, and failed to provide or timely provide a copy of the medical records after written request.” In the judgment, rendered June 1, 2009, the workers’ compensation judge found that plaintiff “failed to carry his burden of proof that defendant failed to timely pay all workers’ compensation benefits, indemnity and medical, due to claimant” and dismissed plaintiffs case with prejudice. No appeal was taken from that judgment.

In June 2009, plaintiff filed a second disputed claim for compensation against defendant claiming only that his wage benefits were terminated or reduced in July 2006. In response, defendant filed an exception of res judicata, which was sustained by the workers’ compensation judge after a hearing. This appeal followed.

\ ¿DISCUSSION

Louisiana Revised Statutes § 13:4231, which sets forth the factors for a court to apply in determining whether a subsequent claim is barred by res judicata, provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Res judicata promotes judicial efficiency and final resolution of disputes. Avenue Plaza, LLC v. Falgoust, 96-0173 (La.7/2/96), 676 So.2d 1077, 1079. On the trial of the peremptory exception raising the objection of res judicata, the burden of proving facts essential to sustaining the objection is on the party pleading the objection. Union Planters Bank v. Commercial Capital Holding Corp., 04-0871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. The doctrine of res judicata is stricti juris and should be rejected when doubt exists as to whether a party’s substantive rights have actually been previously addressed and finally resolved. Dominique ex rel. Dominique v. Allied Discount Tire and Brake, Inc., 02-1338 (La.App. I Cir. 5/9/03), 849 So.2d 690, 695, writ denied, 03-1605 (La.10/3/03), 855 So.2d 320. A final judgment has the authority of a thing adjudged only as to .those issues presented in the pleadings and conclusively adjudicated by |4the court. K-Mart Corp. v. Malbrough, 04-2609 .(La.App. 1 Cir. 12/22/05), 928 So.2d 133, 137. When a party raises the objection of res judicata, the court must examine not only the pleadings but also the entire record in the first suit to determine whether the second suit is barred by res judicata. Union Planters, 907 So.2d at 130.

The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated. Lee v. Twin Brothers Marine Corp., 03-2034 (La.App. 1 Cir. 9/17/04), 897 So.2d 35, 37-38; see also La. C.C.P. arts. 2127, 2128, and 2127 (comment d). In the instant case, the defendant failed to meet his burden at trial of the exception because he did not file the entire record of the previous litigation into evidence. Accordingly, this court cannot determine whether the issue of plaintiffs benefit termination in July 2006 was actually litigated. See Lee, 897 So.2d 35. Without the benefit of the record upon which the June 2009 judgment rests, we cannot uphold the workers’ compensation judge’s finding that plaintiffs second claim is barred by res judicata.

DECREE

The OWC judgment sustaining the peremptory -exception of res judicata is reversed and the matter is remanded to the Office of Workers’ Compensation, District 6. Costs of this appeal are assessed to defendant, Livingston Timber, Inc.

REVERSED AND REMANDED.


author: PARROT, J.

text:
    Manuel PLAISANCE v. LOUISIANA STATE PENITENTIARY, Major K. Groom, and Donald Cavalier.
    No. 2010 CA 1249.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.
    Manuel Plaisance, Angola, LA, Plaintiff-Appellant, In Proper Person.
    Terri L. Cannon, Baton Rouge, LA, for Defendant-Appellee Louisiana Department of Public Safety and Corrections.

    Before PARRO, GUIDRY, and HUGHES, D.

      . Although the petition names defendants as shown in the suit caption above, the only proper party defendants is the Louisiana Department of Public Safety and Corrections. See LSA-R.S. 15:1177(A)(1)(b).

   PARROT, J.

IgManuel Plaisance, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a judgment dismissing his petition for judicial review on the grounds that the district court lacked subject matter jurisdiction over his claims. Based on our review of the facts and law in this case, we affirm the judgment, but on different grounds.

ANALYSIS OF FACTS AND LAW

According to Plaisance’s account of the underlying facts, a prison guard ordered another prisoner to attack him, and then wrote him up for a violation of Disciplinary Rule #11, “Aggravated Fighting,” when he defended himself. He claims that he was never given a copy of the disciplinary report, which he contended was falsified by the prison guard. He also states that when he filed a motion for an extension in an attempt to get a copy of the report, the motion was denied. In a hearing before the disciplinary board on October 9, 2008, he was found guilty and sentenced to a change of quarters to Camp J (extended lockdown).

Plaisance filed an administrative remedy procedure (ARP) request pursuant to the Corrections Administrative Remedy Procedure Act, LSA-R.S. 15:1171-1179; the request was denied at both steps of the process. The warden’s decision stated that the disciplinary report clearly showed that the guard gave Plaisance a copy of the report. The warden further stated that Plaisance was notified of the disciplinary hearing within adequate time to prepare a defense and was found guilty after a full hearing.

An offender aggrieved by a disciplinary action by the DPSC may seek judicial review pursuant to LSA-R.S. 15:1177. Victorian v. Stalder, 99-2260 (La.App. 1st Cir.7/14/00), 770 So.2d 382, 384 (en Banc). Plaisance filed a petition for judicial review, seeking reversal of the disciplinary sentence, removal of the charge from his prison record, and monetary damages. The district court struck the request for monetary damages at the recommendation of the commissioner, because such claims are subject |ato the original jurisdiction of the district court, whereas a petition for judicial review falls under the district court’s appellate jurisdiction.

The DPSC then filed an exception raising the objection of lack of subject matter jurisdiction, contending that because no “substantial rights” of the prisoner were violated by the disciplinary action, the district court could neither reverse nor modify the decision. The commissioner recommended that the exception be sustained, noting that the penalty imposed on Plai-sance did not involve a forfeiture of good time or constitute an atypical deprivation of a substantial right of the petitioner under LSA-R.S. 15:1177(A)(9). Stating that the statute authorizes a court to intervene in the decision of the DPSC only if “substantial rights” have been violated, the commissioner concluded that the petitioner had no constitutional or substantial right to any particular housing classification, job classification, or recreational hobby craft. See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Taylor v. Broom, 526 So.2d 1367 (La.App. 1st Cir.1988). Therefore, the commissioner recommended dismissal of the petition for lack of subject matter jurisdiction. After considering the record, the district court signed a judgment in accordance with this recommendation and dismissed Plaisance’s suit at his costs. This appeal followed. See LSA-R.S. 15:1177(A)(10).

On reviewing the applicable law, we disagree with the conclusion that the district court had no subject matter jurisdiction due to the limitations on its actions set forth in LSA-R.S. 15:1177(A)(9). We do not interpret this statutory provision as divesting the court of subject matter jurisdiction over the petition for judicial review. Rather, we consider that this provision merely limits the available remedies, should the district court determine, upon review of the facts, that the matter does not involve any violation of or prejudice to “substantial rights” of the inmate.

However, we note that the failure to allege facts upon which relief can be granted results in a failure to state a cause of action, which this court can notice on its own motion. See LSA-C.C.P. art. 927(A)(5) and (B). Although the district court had the authority to review Plai-sance’s petition for judicial review, it could provide no relief for his complaints, because he did not allege facts showing a violation of his “substantial • Rrights.” Therefore, his petition for judicial review must be dismissed for failure to state a cause of action. See Giles v. Cain, 99-1201 (La.App. 1st Cir.6/23/00), 762 So.2d 734.

CONCLUSION

Based on the foregoing, we affirm the dismissal of the petition for judicial review and assess all costs against Manuel Plai-sance.

AFFIRMED.

      . The case was assigned to a commissioner to conduct all proceedings and make a recommendation to the district court judge. This procedure is used in the Nineteenth Judicial District Court to handle the large volume of inmate lawsuits under LSA-R.S. 15:1177(A). See LSA-R.S. 13:713; Bordelon v. Louisiana Dept. of Corr., 398 So.2d 1103 (La.1981). The court performs an initial screening review of the petition to determine if it states a cognizable claim or fails to state a cause of action. See LSA-R.S. 15:1178.


author: McDonald, j.

text:
    Gerald Kent HOOD v. CAJUN CONSTRUCTORS, INC.
    No. 2010 CA 0845.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 2011.

      Marvin C. Gros, Donaldsonville, Louisiana, for Plaintiff/Appellant, Gerald Kent Hood.
    Frank R. Whiteley, III, Metairie, Louisiana, for Defendant/Appellee, Cajun Constructors, Inc.
    Before WHIPPLE, McDONALD, and McClendon jj.
   McDonald, j.

|2On July 15, 2008, Gerald Kent Hood, a heavy-equipment operator, filed a disputed claim for compensation against his employer, Cajun Constructors, Inc. (Cajun Constructors). He asserted that he was working on April 10, 2001, putting in oil drill shafts, when he felt a light mist on his skin for about two and a half hours. His skin was itching and burning, and thereafter, he asserted, a supervisor sent him and other workers to the company doctor. Mr. Hood asserted that his sinuses, lungs and stomach were affected by the incident and that benefits were due to him.

On December 4, 2008, Cajun Constructors filed a peremptory exception of res judicata, asserting: that the claim arose from an accident that occurred on April 10, 2001; that the claim was settled by a joint motion signed by the workers’ compensation judge on November 15, 2004; and that the claim should be dismissed with prejudice. Cajun Constructors attached as exhibits the order approving the settlement and dismissing the case, the joint petition for settlement, Mr. Hood’s affidavit that he understood the consequences of the settlement and agreed to the settlement, an affidavit by counsel for Cajun. Constructors and St. Paul Mercury Insurance Company that the allegations in the joint petition for settlement were true and correct, an affidavit by Mr. Hood’s attorney that Mr. Hood understood the settlement documents and consequences, and the joint motion and order to dismiss the case.

On February 13, 2009, Mr. Hood filed a motion to nullify the judgment dismissing the case, asserting that the judgment was obtained by fraud and ill practices committed by St. Paul Mercury Insurance Company. Mr. Hood attached an affidavit to his motion, which asserted that he had three different accidents while working for Cajun Constructors and that he believed that during the settlement of a different lawsuit (a class action suit involving Vulcan Chemical)' St. |sPaul Mercury Insurance Company was reimbursed for medical bills which had been paid for by Mr. Hood’s personal health insurance, rather than by St. Paul Mercury Insurance Company.

After a hearing, the workers’ compensation judge granted Cajun Constructor’s peremptory exception of res judicata and denied Mr. Hood’s motion to nullify the judgment. Mr. Hood is appealing that judgment.

After a thorough review of the record, we find that there was no evidence presented showing fraud or ill practices by St. Paul Mercy Insurance Company in this case. Thus, we find that the workers’ compensation judge was legally correct in granting the peremptory exception of res judicata and did not abuse his discretion in denying the motion to nullify the judgment. Thus, the judgment is affirmed and costs are assessed against Mr. Hood.

AFFIRMED.


author: KEATY, Judge.

text:
    STATE of Louisiana v. Kevin Charles GASAWAY.
    No. 10-864.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 16, 2011.
    John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, Louisiana, for State of Louisiana.
    Mark O. Foster,- Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant, Kevin Charles Gasa-way.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

1 Jhis matter comes before us on an appeal from a trial court’s judgment pursuant to a motion to recuse. Defendant, Kevin Charles Gasaway, asserts that Judge Todd Clemons, randomly assigned to preside over a pre-trial recusal hearing, erred in denying Defendant’s motion to recuse Judge David A. Ritchie, the judge allotted to preside over a murder trial in which Gasaway was the defendant. For the following reasons, we find that the appeal has no merit, and we dismiss.

Courtnee Lewis was murdered on December 14, 2004. Immediately before the fatal shot was fired, her ten-year-old daughter witnessed Courtnee’s estranged husband, Defendant, hitting her, dragging her through shattered glass, brandishing a gun, and threatening to kill her. After the shot was fired, neighbors saw a black male run away from the home and were able to describe the clothing he was wearing. The next day, Defendant was arrested on the suspicion-that he had killed Courtnee, and, during the trip to the jail, he made self-incriminating statements, including an admission that he had killed Courtnee.

On February 3, 2005, Defendant was charged by indictment with first degree murder, in violation of La.R.S. 14:30. He entered a plea of not guilty on March 14, 2005. On December 5, 2005, the indictment was amended to charge Defendant with second degree murder, and, again, Defendant entered a plea of not guilty.

On January 31, 2007, the State filed a notice under La.Code Evid. art. 404(B) of its intent to introduce evidence of other crimes as Defendant had previously been convicted of perpetrating violence against Courtnee Lewis. On May 16, 2007, |2folIowing a Priew hearing, Judge Rit-chie granted the State’s motion over the objection of defense counsel.

On October 19, 2007, Defendant filed a motion to recuse Judge Ritchie, the trial judge. In his motion, Defendant made three allegations against Judge Ritchie which he claimed were sufficient to warrant Judge Ritchie’s recusal pursuant to La.Code Crim.P. art. 671. These allegations were: 1) that Judge Ritchie was associated with the Public Defender’s Office (PDO) when it represented him in three criminal matters which the State planned on introducing during the pending trial; 2) that Judge Ritchie personally represented him in a separate criminal matter that would not be introduced as evidence of other crimes; and 3) that Judge Ritchie had personally represented Barbara Lee, a witness and a complainant in an incident giving rise to one of the three prior convictions that would be introduced as evidence of |sother crimes during the pending trial. Judge Ritchie denied Defendant’s motion on the same date. Defendant withdrew his former plea and entered a plea of not guilty and not guilty by reason of insanity.

Defendant filed a notice of intent to seek review of Judge Ritchie’s denial of the motion to recuse on October 26, 2007. On November 14, 2007, Defendant filed an application for writ of supervisory review with this court. We issued the following ruling on November 21, 2007: “WRIT DENIED: The trial court did not err by denying Defendant’s motion to recuse. See State v. Connolly, 06-540 (La.6/2/06), 930 So.2d 951; See also State v. Mayeaux [sic], 06-944 (La.App. 3 Cir. 1/10/07), 949 So.2d 520.” State v. Gasaway, an unpublished writ ruling bearing docket number 07-1447 (La.App. 3 Cir. 11/21/07).

On January 3, 2008, the supreme court reversed this court’s ruling, stating: “Writ granted — the ruling of the trial court is vacated and the motion to recuse is remanded to the district court for hearing before another judge or a judge ad hoc as provided in La.C.Cr.P. art. 674 & 675.” State v. Gasaway, 07-2456 (La.1/3/08), 973 So.2d 722.

Subsequent to the supreme court’s decision, Judge Ritchie ordered that the motion to recuse be randomly re-allotted to another judge. Judge Clemons became the presiding judge for purposes of determining whether Judge Ritchie should be recused. During the course of the April 2, 2008 hearing, Judge Clemons heard testimony from Judge Ritchie and from Ron Ware, the executive director of the PDO. He also heard argument from the attorney for Defendant and the attorney for the State. At the end of the hearing, Judge Clemons took the case under advisement and vindicated that he would make his ruling in open court on April 4, 2008. At that time, however, Judge Clemons still was not ready to rule. He stated, “I gave this a lot of consideration.... I mean it is a serious decision. Thé man is facing some serious charges, and like I said, I thought I was ready to rule but I’m just not ready.” Judge Clemons gave the attorneys the option of submitting additional briefs and reset the matter for the following Wednesday, April 9, 2008.

On April 9, 2008, after considering the briefs submitted to the court, the testimony of the witnesses, and the arguments of counsel, Judge Clemons denied Defendant’s motion to recuse. He found no evidence that Judge Ritchie was biased, prejudiced, or personally interested in the outcome of Defendant’s pending second-degree murder case. Judge Clemons based his decision on his finding that although Judge Ritchie was employed by the PDO during 2003, he was not associated in this cause. ,

Defendant filed a notice of intent to seek review of Judge Clemons’s ruling on April 16, 2008, and his application for writ of supervisory review was filed with this court on May 9, 2008. On May 30, 2008, we issued the following ruling: “WRIT DENIED: There is no error in the denial of the Defendant’s motion to recuse the trial judge.” State v. Gasaway, an unpublished writ ruling bearing docket number 08-587 (La.App. 3 Cir. 5/30/08), writ denied, 08-1457 (La.10/3/08), 992 So.2d 1016.

The indictment against Defendant was again amended on December '1, 2009, to reflect the second degree murder statute, La.R.S. 14:30.1; the body of the bill was amended to reflect that: “he did commit second degree murder of Courtnee Lewis 1 swhen the defendant had the specific intent to kill or inflict great bodily harm.” After the amendment, Defendant entered a plea of not guilty and not guilty by reason of insanity. Trial by jury subsequently commenced on December 4, 2009. On December 7, 2009, Defendant was found guilty of second degree murder. On January 8, 2009, he was sentenced to serve life imprisonment without benefit of probation, parole, or suspension of sentence.

A motion for appeal was filed on January 15, 2010, and was subsequently granted. Defendant is now before this court asserting one assignment of error. Therein, he contends that Judge Clemons erred in denying his motion to recuse Judge Ritchie. This assignment of error lacks merit.

ERRORS PATENT

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

DISCUSSION

In his only assignment of error, Defendant contends that Judge Clemons erred in denying his motion to recuse Judge Ritchie.

Although the trial court’s ruling was addressed in a pre-trial writ application filed by Defendant, he alleges that this court’s prior ruling was patently erroneous and produced an unjust result. Defendant contends that the jurisprudence is clear that La.Code Crim.P. art. 671(A)(3) applies when a trial judge was counsel for a defendant for prior crimes that were used as other crimes evidence at trial.

| (-Defendant asserts that throughout 2003, he was charged with at least the following four bills of information arising from confrontations with the decedent, Courtnee Lewis. The charges against him were:

1. An April 19, 2003 offense of simple battery of his wife, Courtnee Gasa-way, in Fourteenth Judicial District Court, Docket Number 8875-03.
2. An April 23, 2003 offense of simple battery of his wife, Courtnee Gasa-way, and violation of a protective order, in Fourteenth Judicial District Court, Docket Number 8876-OS.
3. June 5, 2003 offenses of simple battery and false imprisonment of his wife, Courtnee Gasaway, and violation of a protective order, in Fourteenth Judicial District Court, Docket Number 8877-03.
4. The offenses of simple battery of his wife, Courtnee Gasaway, unauthorized use of a movable involving an automobile, and violation of a protective order, in Fourteenth Judicial District Court, Docket Number 8878-03.

Defendant contends that the PDO was appointed to represent him in this cause, and, at the time, Judge Ritchie was employed by the PDO. Additionally, Defendant contends that Judge Ritchie was assigned to Docket Number 8878-03 and represented Defendant in the matter before it was dismissed. Defendant further contends that Docket Number 8878-03 was dismissed and he entered a guilty plea in the remaining docket numbers.

Defendant contends that he was entitled to conflict-free counsel under the Sixth Amendment. According to Defendant, that right includes not having the PDO represent him in the four cases charged in 2003 and then having Judge Ritchie preside over the admissibility of three of those same cases in his 2004 murder case.

| .¿Defendant further contends that Judge Clemons erred in finding that La. Code Crim.P. art. 671(A)(3) did not apply because Judge Ritchie was present in name only and was not actually associated with the PDO because he was actively campaigning for judge at the time. This was the same argument he made in his application for supervisory writs to this court in May of 2008 and to the supreme court in July of 2008.

In arguing that the trial court did not err in denying Defendant’s motion to re-cuse, the State points to this court’s decision in State v. Pierce, 01-94, p. 11 (La.App. 3 Cir. 10/31/01), 799 So.2d 732, 740, writ denied, 01-3312 (La.1/10/03), 834 So.2d 427, wherein we noted the following:

In State v. Edwards, 420 So.2d 663, 673 (La.1982), the supreme court stated:

It is well settled that a trial judge is presumed to be impartial. State v. Collins, 288 So.2d 602 (La.1974). For an accused to be entitled to the recusation of a trial judge on the grounds of bias, prejudice and personal interest such bias, prejudice and personal interest must be of a substantial nature based on more than mere conclusory allegations. State v. Qualls, 377 So.2d 293 (La.1979).

In State v. Chambers, 99-678, p. 3 (La.App. 3 Cir. 1/19/00), 758 So.2d 231, 233, writ denied, 00-551 (La.9/22/00), 768 So.2d 600, this court stated the following:

A defendant may seek review of a pretrial ruling by the trial court even after the denial of a pretrial supervisory writ application seeking review of the same issue.
The prior denial of supervisory writs does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion. State v. Fontenot, 550 So.2d 179 (La.1989); State v. Decuir, 599 So.2d 358 (La.App. 3 Cir.1992), writ denied, 605 So.2d 1095 (La.1992). When a defendant does not present any additional evidence on this issue after the pre-trial ruling, the issue can be rejected on appeal. See, e.g., State v. Regan, 601 So.2d 5 (La.App. 3 Cir.1992), unit denied, 610 So.2d 815 (La.1993); State v. Wright, 564 So.2d 1269 (La.App. 4 Cir.1989). Judicial efficiency demands that this court accord great deference to its pre-trial decision unless it is apparent that the determination was patently erroneous and produced unjust results. State v. Decuir, supra, at 360.
State v. Hebert, 97-1742 (La.App. 3 Cir. 6/3/98); 716 So.2d 63, 67, writ denied, 98-1813 (La.11/13/98); 730 So.2d 455, citing State v. Magee, 93-643, p. 2 (La.App. 3 Cir. 10/5/94); 643 So.2d 497, 499.

Defendant presents' no new arguments to this court on appeal. In accordance with State v. Decuir, 599 So.2d 358, we must accord great deference to our pretrial ruling. After reviewing the record in detail, including Judge Clemons’s reasons for ruling, it is clear that' he thoroughly considered all law, testimony, and evidence presented to him before making a determination on the issue of Judge Ritchie’s recu-sal. As it is not apparent that this court’s prior ruling is patently erroneous, we find that Defendant’s assignment of error lacks merit, and we affirm Judge Clemons’s ruling on the recusal of Judge Ritchie.

DECREE

For the foregoing reasons, the judgment of the trial court denying Defendant’s motion to recuse Judge David A. Ritchie is affirmed.

AFFIRMED.

      . In State v. Prieur, 277 So.2d 126 (La.1973), the Louisiana Supreme Court set forth safeguards to be applied when the State intends to offer evidence of other criminal offenses under exceptions to the "other crime” exclusionary rule.

      . Louisiana Code of Criminal Procedure Article 671, entitled "Grounds for recusation of judge” provides, in pertinent part, as follows:
      A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
      (1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
      (2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree;
      (3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
      (4) Is a witness in the cause;
      (5) Has performed a judicial act in the case in another court; or
      (6) Would be unable, for any other reason, to conduct a fair and impartial trial.

      .Several sanity commissions were appointed to examine Defendant, and, after each examination, he was found competent to proceed to trial.

      . Judge Clemons, in explaining why he denied Defendant’s motion to recuse, stated, "in this cause does not include the Prieure [sic] evidence that occurred in 2003; and therefore, there are not grounds to recuse."

      . Docket Number 8878-03 is not one of the prior crimes the State intended to introduce against Defendant in the 2004 murder trial.


author: PICKETT, Judge.

text:
    Willard HARP, et al. v. Penny Darryl PENNEY.
    No. 11-135.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 16, 2011.

      Kenneth Alfred Doggett, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Penny Darryl Penny.
    Susan Ford Fiser, Attorney at Law, Alexandria, LA, for Plaintiffs/Appellees, Willard A. Harp, Lisa Harp.
    E. Grey Burnes Talley, Burnes, Burnes & Talley, Alexandria, LA, for Defendant/Appellee, Christopher Harp.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

Ijfhe plaintiffs-appellees, Willard A. Harp and Lisa Harp, move this court for the issuance of a stay of these proceedings and for an order remanding the appeal in this case to permit the plaintiffs to proceed with a traversal of the pauper status granted to the defendant-appellant, Penny Darryl Penney. Finding that the traversal of pauper status was not timely sought, we deny the requested relief.

The instant litigation involves a custody dispute between the parties. By order of the trial court dated October 1, 2008, the defendant was granted permission to proceed in this action in forma pauperis. Following-the signing of a judgment in the case, the defendant filed a motion for appeal on August 30, 2010, and the trial court signed the order of appeal the following day. On February 2, 2011, the plaintiffs filed the instant motions in this court seeking a remand of this case for the purpose of traversing the defendant’s pauper status and requesting a stay of all proceedings.

The plaintiffs assert several reasons to justify review of the defendant’s pauper status. The plaintiffs contend that, although the defendant was unemployed at the time of the initial pauper order, the defendant has not offered any explanation as to why she cannot be gainfully employed at the current time. Moreover, the plaintiffs aver that after the initial pauper order, the defendant married Daniel Hinton. As to this latter point, the plaintiffs have provided this court with pertinent portions of the trial transcript from the hearing on January 26, 2010, wherein Hinton testified that he was financially capable of providing for the defendant and her child. Furthermore, the plaintiffs cite this court to the fact that Hinton testified that his wife has held several jobs. Relying on these facts, the plaintiffs ask that they be afforded the opportunity to traverse the defendant’s pauper status in the trial court.

In Ardoin v. Swint, 315 So.2d 839 (La.App. 3 Cir.1975), this court denied a | amotion to remand an appeal for the purpose of traversing the appellant’s pauper status as untimely filed. This court noted that, unlike cases where the pauper order was signed at the same time that the order of appeal was signed, in Ardoin the pauper order had been signed when the suit was filed in the summer of 1973. Trial was held in that case on February 24, 1975; judgment was signed on March 12, 1975; and the oral motion for appeal had been granted by the trial court on April 3, 1975. The motion to remand the appeal for the purpose of traversing the pauper status was not filed until June 27,1975.

This court held that the attempt to traverse the pauper status was untimely filed, having not been attempted while the case was pending for twenty-three months before the trial court. This court stated:

Having had adequate opportunity to traverse plaintiff both before and during trial, we are not disposed to delay the appeal by remanding for a hearing on this issue. The fact that he has been allowed to proceed as a pauper does not mean that he will not be required to pay all costs which are taxed against him.

Ardoin, 315 So.2d at 840.

Likewise, in the instant case, the defendant was granted pauper status in October of 2008. The plaintiffs rely, in large part, on the testimony of the defendant’s husband from the trial testimony adduced on January 26, 2010. This testimony reveals that the defendant married Hinton in September of 2009. Despite this testimony having been given in open court in the presence of plaintiffs’ counsel on January 26, 2010, the plaintiffs did not file their motion to traverse the defendant’s pauper status while the matter was pending before the trial court. Moreover, according to the plaintiffs’ own statements in the pleading sub judice, trial did not conclude trial until March 18, 2010. Furthermore, the defendant did not file her motion for appeal until August 30, 2010. Given the length of time that the plaintiffs |shad knowledge of these facts while this case was still pending in the trial court and the lack of explanation by the plaintiffs as to why they did not file their traversal during this time period, we refuse to delay this appeal by remanding it for a traversal that could have been pursued before this appeal was taken, and we deny the plaintiffs’ motion to stay these proceedings and their motion to remand this appeal at plaintiffs’ cost.

MOTION FOR STAY DENIED.

MOTION TO REMAND DENIED.


author: DICKINSON, Presiding Justice,

text:
    In the Matter of the ESTATE OF Patricia McDaniel LANGSTON, Deceased. Mansfield Langston v. Ethel WILLIAMS.
    No. 2008-CT-01090-SCT.
    Supreme Court of Mississippi.
    Feb. 24, 2011.

      Lindsey C. Meador, Cleveland, attorney for appellant.
    Alsee McDaniel, Carver A. Randle, Indi-anola, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. A wife created joint tenancies with her husband in a parcel of real estate and a certificate of deposit. After the wife’s death, the chancery court found that, because a confidential relationship had existed between the decedent and her husband, the burden of proving the absence of undue influence fell on the husband. Then, finding that the husband had failed to carry that burden, the chancellor set aside the husband’s survivorship rights in the parcel and certificate of deposit.

¶2. Generally, courts presume that a beneficiary under a will used undue influence over a testator with whom the beneficiary shared a confidential relationship, but we have recognized an exception to this rule for confidential relationships between husbands and wives. In this case of first impression, we hold that the exception for husbands and wives applies not only to bequests in a will, but also to inter vivos gifts.’ We therefore reverse and remand.

BACKGROUND

¶ 3. The facts necessary to resolve this matter are simple. Patricia Langston granted her husband, Mansfield, joint tenancies (with right of survivorship) in the couple’s marital home, and in a $200,000 certificate of deposit. Her will left nothing to Mansfield.

¶4. Following Patricia’s death, her estate sought to set aside the joint tenancies. The chancellor — finding that a confidential relationship had existed between Mansfield and Patricia — presumed Mansfield had used undue influence, Requiring Mansfield to prove by clear and convincing evidence that he did not unduly influence Patricia to make the gifts. Then, finding Mansfield did not meet this burden, the chancellor set aside both gifts.

¶ 5. The Court of Appeals correctly reversed the chancellor for presuming undue influence. But it reversed and rendered, depriving the estate of an opportunity to prove undue influence.

ANALYSIS

¶ 6. This Court “will not reverse a chancery court’s findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence supporting those findings.” But if “an erroneous legal standard was applied,” we review de novo, and are free to reverse.

¶ 7. In Madden v. Rhodes, we defined confidential relationship as

a relation between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of mind or body, or through trust[. T]he law does not hesitate to characterize such relationship as fiduciary in character.

¶ 8. The factors a court considers in determining whether a confidential relationship exists include:

• whether one person has to be taken care of by others;
• whether one person maintains a close relationship with another;
• whether one person is provided transportation and has their medical care provided for by another;
• whether one person maintains joint accounts with another;
• whether one is physically or mentally weak;
• whether one is of advanced age or poor health; and
• whether there exists a power of attorney between the one and another.

¶ 9. This Court has long identified a distinction in the standards of law applied to challenged inter vivos — as opposed to testamentary — gifts. In Madden, we said that

the rules of law are different regarding gifts testamentary and gifts inter vivos where a confidential relationship exists between the testator/grantor and the beneficiary/grantee. The prior holdings of this Court indicate a presumption of undue influence only arises in the context of gifts by will when there has been some abuse of the confidential relationship, such as some involvement in the preparation or execution of the will. On the other hand, with a gift inter vivos, there is an automatic presumption of undue influence even without abuse of the confidential relationship. Such gifts are presumptively invalid.

¶ 10. In Genna v. Harrington, however, we held that the confidential relationship between husband and wife does not raise a presumption of undue influence. Specifically, we stated:

It is undoubtedly true that a husband or a wife may exercise undue influence upon the other spouse, but the mere fact that there is a close relationship between the parties in a marriage does not mean that one’s influence upon another is undue influence. The influence which a loyal wife, by her virtues, kindnesses and devotion, gains over her husband’s affection and conduct, whereby a husband is caused to make a will in her favor, is no ground for refusing to admit the will to probate.
A wife may be caused by her love and affection to make a will in favor of her husband in the same way.
In order to set a will aside upon the grounds of undue influence on the part of a spouse, it must be shown that the devisee spouse used undue methods for the purpose of overcoming the free and unrestrained will of the testator so as to control his acts and to prevent him from being a free agent.

¶ 11. So under Genna, a surviving spouse does not have to rebut a presumption of undue influence. Rather, it is the contestant’s burden to show that the surviving spouse used undue influence. The Court of Appeals correctly extended Gen-na’s husband-wife exception to inter vivos gifts. And so, even though the chancellor found a confidential relationship, she erred by presuming undue influence, thereby shifting the burden to Mansfield to prove the absence of undue influence.

¶ 12. The estate argues that the chancellor was correct because Genna involved a testamentary gift as apposed to an inter vivos grant, which — as discussed above — is treated differently.

¶ 13. This Court has not previously extended the rule in Genna to inter vivos gifts between a husband and wife. Today we do so. We hold that a confidential relationship between a surviving spouse and a deceased spouse does not create a presumption that the surviving spouse used undue influence with respect to inter vivos gifts and transfers. As is true with contested wills, the contestant bears the burden of proving the surviving spouse used undue influence.

¶ 14. The Court of Appeals’ opinion in today’s case is in conflict with its earlier decision in Spencer v. Hudspeth. In that case, the Court of Appeals considered whether a confidential relationship between the decedent and her husband created an automatic presumption that an inter vivos gift was invalid, thereby shifting the burden to the widower, the grantee, to rebut. Rather than extending the law from Genna, it applied the law from Madden, requiring the husband to rebut an automatic presumption of undue influence.

¶ 15. In today’s case, the Court of Appeals attempted to distinguish Spencer as follows:

[I]n Spencer v. Hudspeth, this Court reversed the chancery court’s denial of a motion to set aside a deed on the ground of undue influence. Ethel Hud-speth executed a deed to forty acres of land to her husband,' Montie Hudspeth. We found a confidential relationship existed between Ethel and Montie because Ethel was physically and mentally weak. She had suffered a stroke, a heart attack, and a broken hip. She was bedridden, disoriented, and very weak. Ethel’s signature on the deed was misspelled, and Ethel had been in a nursing home for a year before the deed was signed. The motion to set aside the deed was filed by Ethel’s niece after both Ethel and Montie were deceased. The facts of Spencer are distinguishable from the facts in this case. Ethel’s signature, which was made while she was physically and mentally weak and a resident of a nursing home, was highly suspect. In the instant case, there is no question that Patricia executed the deed and the certificate of deposit. Both Noble, the attorney who prepared the deed, and Paul Townsend, the banker who prepared the certificate of deposit, testi-fled that Patricia was competent, knowledgeable, and did not exhibit any mental weakness.

¶ 16. Actually, the reasons the Court of Appeals gave to distinguish Spencer are factors for determining the existence of a confidential relationship. The court’s analysis did not address who had the burden of proving the existence or absence of undue influence. Both cases involved inter vivos gifts between spouses in confidential relationships. In Spencer, the husband had to prove that there was no undue influence. In today’s case, the Court of Appeals held that the estate had to prove the husband’s use of undue influence. Our decision today resolves this conflict.

¶ 17. After finding the chancellor had applied a wrong legal standard, the Court of Appeals reversed and rendered. As Judge Irving astutely pointed out in his dissent, however, “Mississippi appellate courts generally reverse and remand a chancellor’s judgment when an incorrect legal standard has been applied.” Because the chancellor incorrectly shifted the burden to Mansfield, the estate was not required to — and thus had no reason to— move forward with its attempt to prove that Mansfield had used undue influence over Patricia. So we affirm the decision of the Court of Appeals in part, but we reverse in part, remanding this case to allow Williams the opportunity to make such a showing.

CONCLUSION

¶ 18. We hold that the law we announced in Genna v. Harrington concerning testamentary gifts applies equally to inter vivos transfers. A confidential relationship between spouses does not create a presumption that one spouse used undue influence over the other to obtain an inter vivos gift. And one who claims the gift was the product of undue influence bears the burden of proof. Because the chancellor found that such a presumption existed, the estate was neither required, nor given, the opportunity to prove undue influence. We affirm the Court of Appeals in part and reverse it in part. We therefore reverse the trial court judgment and remand this case for a new trial.

¶ 19. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS CHANDLER AND PIERCE, JJ., CONCUR.

      . Estate of Dunn v. Reilly, 784 So.2d 935, 939 (Miss.2001) (quoting Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)).

      . Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993).

      . Id. at 617 (quoting Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982)).

      . In re Estate of Dabney, 740 So.2d 915, 919 (Miss.1999).

      . Madden, 626 So.2d at 618.

      . Genna v. Harrington, 254 So.2d 525 (Miss.1971).

      . Id., at 528-29 (citing 57 Am.Jur. Wills § 359 (1948)).

      . Spencer v. Hudspeth, 950 So.2d 238, 240 (Miss.Ct.App.2007).

      . Langston v. Williams, 57 So.3d 657, 661-62 (Miss.Ct.App.2010) (citations omitted).

      . Id. at 664.

      . Genna, 254 So.2d at 528-28 (Miss.1971).


author: LAMAR, Justice,

text:
    J. Clifford HARRISON as Trustee (“Harrison”) and Regions Bank f/k/a AmSouth Bank and Successor in Interest to Deposit Guaranty National Bank (“Bank”) v. MISSISSIPPI TRANSPORTATION COMMISSION.
    No. 2008-CT-02067-SCT.
    Supreme Court of Mississippi.
    March 3, 2011.

      Jon J. Mims, Jeffrey D. Rawlings, Madison, attorneys for appellants. -
    James T. Metz, Alan M. Purdie, Grenada, Betty Ruth Fox, Jackson, Joshua D. Freeman, attorneys for appellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. In this eminent-domain case, the Mississippi Transportation Commission (MTC) deposited money with the trial court to take title to 1.45 acres of property under quick-take provisions. But a jury determined that the property was worth less than the amount of the deposit. The court subsequently entered personal judgment against the landowners, mortgagee, and trustee for the difference. At issue is whether the mortgagee and trustee are liable for reimbursing MTC for the difference. We find that they are not liable under the plain language of the statute governing such reimbursements.

Facts & Procedural History

¶ 2. On October 20, 1998, MTC filed a complaint for eminent-domain proceedings to acquire 1.45 acres of a fifty-acre parcel of property in Webster County, Mississippi, to expand a portion of U.S. Highway 82. It named the owner of the property, Sherry Mann, as well as the mortgagee, Deposit Guaranty National Bank, and trustee, J. Clifford Harrison, as defendants. It also filed a statement of values, in which its appraiser valued the property at $14,450. This amount was deposited with the court.

¶ 3. In compliance with quick-take provisions, the court appointed an independent appraiser, who valued the property at $57,400. The trial court entered an order granting MTC the right of immediate title and possession upon MTC’s deposit of the difference between $14,450 and $57,400. MTC complied with the order and deposited with the circuit clerk a total of $57,400.

¶4. The court then ordered that the $57,400 be released to the “defendants,” and the circuit clerk issued a check in that amount payable to “Sherry Belinda Mann A/K/A, Ben F. Hilburn, Jr., Atty., Deposit Guaranty National Bank, Beneficiary, J.L. Clifford Harrison, Trustee.” The clerk’s docket shows that the check was “handed to” Ben Hilburn, Sherry’s attorney. Hil-burn and Sherry endorsed the check, and Sherry presented it to the Bank to satisfy the lien on the property.

¶ 5. A jury trial to determine the value of the property was not held until June 17, 2008, ten years after the original complaint had been filed. The record shows that counsel for the Bank and Trustee did not attend the trial. The jury returned a verdict of $14,450 in favor of the defendants. Amd in its judgment, the trial court ordered that all defendants must pay the difference between the withdrawn deposit of $57,400 and the jury award of $14,450.

¶ 6. Upon notice of the judgment, the Bank and Trustee filed a motion to amend judgment or alternatively for relief from judgment under Mississippi Rules of Civil Procedure 59(e) and 60(b)(6). The Bank and Trustee argued that they should not be responsible for paying the difference, when they were not “party to the withdrawal of the funds” from the court. They argued that the judgment should be amended to remove them as judgment debtors. In response, MTC argued that the Bank and Trustee were named on the check; that they had failed to file notice that their lien on the property had been satisfied; and that they were never dismissed as parties to the action.

¶ 7. The court denied the motion and found that the Bank and Trustee were proper parties to the action, who chose not to appear and defend their interests. The court also found that the Bank and Trustee were in fact parties to the withdrawal of funds, as evidenced by the endorsement on the back of the check.

¶ 8. The Bank and Trustee appealed the court’s denial of the motion, and this Court assigned the case to the Court of Appeals. The Court of Appeals reversed the trial court and found that it had abused its discretion in finding that the Bank and Trustee were parties to the withdrawal of funds. The Court of Appeals further found:

Due to the considerable delay between the time funds were disbursed and the time of trial, we find it prejudicial and inequitable for the trial court to hold that the Appellants failed to appear and defend their interests. Their interests were dissolved at the moment Sherry’s loan was extinguished. They were not on notice that they would be liable to the MTC under the quick-take provisions because they had no reason to believe they were still an “owner” of the property.

While we agree with the outcome reached by the Court of Appeals, we do so under different reasoning.

Discussion

¶ 9. We review a denial of a Rule 59 or Rule 60 motion under an abuse-of-discretion standard.

¶ 10. At issue is whether the Bank and Trustee should be liable for the difference between the amount deposited in the court and the amount of compensation finally determined. MTC deposited the money in accord with Mississippi Code Section 11-27-85, which provides in relevant part:

Upon entry of [court] order, the plaintiff may deposit not less than eighty-five percent (85%) of the amount of the compensation and damages as determined by the appraiser with the clerk of court, and upon so doing, the plaintiff shall be granted title to the property ... and shall have the right to immediate entry to said property. The defendant, or defendants, shall be entitled to receive the amount so paid to the clerk of the court, which shall be disbursed as their interest may appear, pursuant to order of the court.

Here, the court’s order did not specify that the clerk was to disburse the deposit according to each defendant’s respective interest. The court simply ordered the clerk to disburse the funds to the “defendants.” So the clerk' made the check payable to all the defendants without specifying whether the defendants were to be paid jointly or alternatively. Sherry, through her attorney, obtained the check from the clerk, endorsed it, and deposited it at the bank, applying the funds to the lien on the property.

¶ 11. While Section 11-27-85 provides that the funds can be disbursed to the “defendant, or defendants,” Mississippi Code Section 11-27-87 addresses who is to pay the difference in the event the deposit is greater than the judgment. Section 11-27-87 provides in relevant part that:

If the plaintiff takes title to and possession of the land condemned pursuant to the order of the court and the amount of the compensation as. determined upon final disposition of the case is less than the amount of the deposit, the plaintiff shall be entitled to a personal judgment against the owner for the amount of the difference.

This statute expressly provides that the plaintiffs [MTC] sole remedy is a personal judgment against only the owner, not the mortgagee and trustee. While the eminent-domain statutes do not define “owner,” we find that this term is commonly understood to refer to the landowner — the one in actual possession of the property, not the mortgagee and trustee. This understanding is also supported by the language of Mississippi Code Section 11-27-5, which provides that, “[a]ny person or corporation having the right to condemn private property for public use shall file a complaint ... and shall make all the owners of the affected property involved, and any mortgagee, trustee or other person having any interest thereon or lien thereon a defendant thereto.” Under this statute, the Legislature clearly distinguished “owner” from “mortgagee” and “trustee.” The Legislature easily could have included mortgagee and/or trustee in the reimbursement provision of Section 11-27-87 but did not. The statute is clear and unambiguous, and we find further analysis unnecessary. The express intent of the Legislature is that it is the landowner who is liable to MTC when the verdict is less than the deposit withdrawn. Therefore, we find the trial court abused its discretion in holding the Bank and Trustee personally liable for the difference.

Conclusion

¶ 12. The trial court abused its discretion in denying the motion to amend judgment. We affirm the Court of Appeals and reverse the trial court and remand the case with orders to the trial court to amend its judgment to remove Regions Bank and J. Clifford Harrison as judgment debtors, as Mississippi Code Section 11-27-87 provides for personal judgment only against the owner of the property.

¶ 13. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE WEBSTER COUNTY SPECIAL COURT OF EMINENT DOMAIN IS REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Regions Bank is the successor in interest to Deposit Guaranty National Bank.

      . With leave of the court, MTC filed an amended complaint under quick-take provisions (Miss.Code Ann. §§ 11-27-81 to -91 (Rev.2004)) and added Peggy and Wayne Mann (Sherry Mann's parents) after discovering that Sherry had conveyed the property to her mother.

      . Miss.Code Ann. § 11-27-83 (Rev.2004).

      . Peggy and Wayne Mann had not been named defendants at this point.

      . Under Hilburn and Sherry’s signatures is a stamp with the following: "Deposit Guaranty National Bank, Post Office Drawer 919, Eu-pora, Mississippi 39744-0919." And below the stamp is an illegible signature and notation: "Personal Banker, the funds were applied to ILS # 9500312557." The Bank and Trustee admitted in their supplemental certio-rari brief that Sherry had used the deposit to pay off her lien with the Bank.

        . Harrison v. MTC, 57 So.3d 648, 652-53 (Miss.Ct.App.2010).

      . Id. at 653-54.

      . Brooks v. Roberts, 882 So.2d 229, 233 (Miss.2004).

      . Briney v. U.S. Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998).

      .Miss.Code Ann. § 11-27-85(2) (Rev.2004) (emphasis added).

      . See Mississippi Code Section 75-3-110(d) which provides in relevant part that "[i]f an instrument payable to two (2) or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively.'' Miss. Code Ann. § 75-3-110(d) (Rev.2008).

      . Miss.Code Ann. § 11-27-87 (Rev.2004).

      . Id.

      . Miss.Code Ann. 11-27-5 (Rev.2004).