author: ROBERT M. MURPHY, Judge.

text:
    ESTATE OF Branch EHRHARDT v. JEFFERSON PARISH FIRE DEPARTMENT, City of New Orleans Fire Department, William Hawkins.
    Nos. 12-CA-319, 12-CA-452.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      James L. Harmon, Attorney at Law, New Orleans, LA, for Plaintiff/Second Appellant.
    William Ken Hawkins, Attorney at Law, Ponchatoula, LA for Plaintiff/Appellant.
    Michael F. Nolan, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

|2The Estate of Branch Ehrhardt (“plaintiff’) and William Ken Hawkins (“in-tervenor”) appeal a judgment rendered by the Office of Workers’ Compensation, District 7, partially granting a peremptory exception of prescription in favor of Jefferson Parish Fire Department (“defendant”) and dismissing all of plaintiffs claims related to the April 7, 2005 “Heart and Lung” claim. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Branch Ehrhardt, claimant, began working for the New Orleans Fire Department (“NOFD”) as a firefighter on October 5, 1969. Mr. Ehrhardt worked for the NOFD until December 28, 1988, when he retired due to a back injury. On May 24, 1997, Mr. Ehrhardt was hired by the Jefferson Parish Fire Department (“JPFD” or “defendant”) as a fire inspector.

On January 21, 2003, Mr. Ehrhardt sustained an on-the-job knee injury, for which, JPFD paid Mr. Ehrhardt both medical and indemnity benefits until his death | son November 11, 2008. As a result of his 2003 knee injury, Mr. Ehrhardt took a disability retirement from JPFD on April 20, 2004.

On or about July 21, 2005, Mr. Ehrhardt filed a disputed compensation claim, Form 1008, (“2005 claim”) with the Office of Workers’ Compensation (“OWC”), alleging that he was diagnosed with “heart and lung disease” on April 7, 2005. In this claim, Mr. Ehrhardt alleged that his heart and lung disease was an occupational disease sustained in connection with his employment with JPFD, and sought to recover benefits, medical treatment, penalties, and attorney fees related to the alleged occupational disease. In response, JPFD, as Mr. Ehrhardt’s employer, investigated Mr. Ehrhardt’s heart and lung claim and subsequently denied the claim.

In October of 2008, the parties agreed to mediate Mr. Ehrhardt’s 2005 heart and lung claim, as well as his 2003 knee claim. On October 7, 2008, the parties reached an agreement wherein JPFD agreed to pay Mr. Ehrhardt $225,000 for past, present, and future medical expenses related to Mr. Ehrhardt’s 2003 knee claim and his 2005 heart and lung claim, in exchange for a full and final settlement, subject to the OWC’s approval of the parties’ proposed settlement. However, Mr. Ehrhardt passed away on November 11, 2008, before the settlement documents could be presented to the OWC for approval.

As Mr. Ehrhardt’s 2005 claim was still pending after his death, a subsequent telephone status conference was held with the workers’ compensation judge (“WCJ”), Judge John C. Grout, Jr., counsel for Mr. Ehrhardt, William K. Hawkins and counsel for JPFD, Michael F. Nolan. The record is unclear as to exactly what was discussed or agreed to during this status conference. Specifically, plaintiff contends that the parties agreed to allow Mr. Ehrhardt to voluntarily dismiss his 2005 claim without prejudice, but reserving Mr. Ehrhardt’s right to re-file the L claim without objection if the matter was not resolved through settlement. Defendant denies any such agreement. However, there is no dispute that following the status conference, Mr. Ehrhardt’s counsel, Mr. Hawkins, voluntarily dismissed Mr. Ehrhardt’s 2005 claim, without prejudice, on September 30, 2009, one day prior to the date on which the case was set for trial.

Thereafter, on November 6, 2009, the Estate of Mr. Ehrhardt (hereinafter “plaintiff’) filed another disputed compensation claim, Form 1008 (“2009 claim”), seeking death benefits and unpaid medical bills incurred for the treatment of Mr. Ehrhardt’s heart and lung disease.

On August 17, 2010, plaintiffs counsel, Mr. Hawkins, filed a motion to withdraw as counsel of record for plaintiff and contemporaneously filed a petition of intervention, asserting that JPFD and the Estate of Mr. Ehrhardt are indebted to him for costs and attorney’s fees associated with his representation of the Estate of Mr. Ehrhardt. On October 11, 2010, the Vour-voulias Law Firm enrolled as new counsel of record for plaintiff.

On January 20, 2011, plaintiff filed a supplemental and amended disputed compensation claim, Form 1008, (“2011 claim”) seeking, in addition to the claims raised in the 2009 claim, medical expenses arising from Mr. Ehrhardt’s knee injury, a lap band procedure, as well as death benefits and other claims for benefits and expenses due and owing at the time of Mr. Eh-rhardt’s death. In response, defendant filed peremptory exceptions of prescription and no right of action on March 2, 2011.

On April 14, 2011, a hearing on the exceptions was held, which included introduction of evidence as well as testimony by plaintiffs former attorney, Mr. Hawkins. At the conclusion of the hearing, Judge Grout partially granted and partially denied defendant’s exception of prescription. On May 13, 2011, the WCJ entered a judgment dismissing, with prejudice, “all claims for unpaid indemnity | ^benefits and unpaid medical bills related to the alleged April 7, 2005, Heart and Lung Claim, asserted in the Estate’s November 6, 2009, original 1008 and the Estate’s January 19, 2011, Supplemental and Amending 1008.”

Mr. Hawkins, as intervenor, sought and was granted a devolutive appeal on May 25, 2011. Plaintiff sought a supervisory writ application with this Court, which this Court denied on July 27, 2011 with the following disposition: “Writ Denied. On the showing made, we find no reason to exercise our supervisory jurisdiction at this time. Relator has an adequate remedy on appeal.” The Estate of Branch Ehrhardt v. Jefferson Parish Fire Department, 11-676 (La.App. 5 Cir. 7/27/11) (unpublished writ disposition). Thereafter, plaintiff sought and was granted a devolutive appeal on March 19, 2012. On June 11, 2012, these two appeals were consolidated.

ISSUES ON APPEAL

On appeal, plaintiff raises four assignments of error: (1) the WCJ’s partial grant of the exception of prescription is contrary to the Louisiana Supreme Court decision in Hebert v. Cournoyer Oldsmobile-Cadillac GMC, Inc., 419 So.2d 878, 879 (La.1982); (2) the signed mediation agreement, subsequent agreement with court and counsel and other factors constitute an acknowledgment of claim sufficient to interrupt prescription; (3) the WCJ’s determination is contrary to the stated policy goals and objectives of Louisiana’s prescriptive statutes and codal articles; and (4) the Estate’s claims are timely as filed within one year of the death of the decedent and the amendment relates back to preserve the heart and lung claims.

In addition, intervenor raises the following assignment of error on appeal: (1) the WCJ erred in finding plaintiffs claim for heart and lung benefits had ^prescribed because defendant’s payment of funeral expenses interrupted the prescriptive period under La. R.S. 23:1209(C).

ASSIGNMENT OF ERROR NUMBER ONE

In plaintiffs first assignment of error, it argues that the WCJ’s determination that the claim had prescribed was in contravention of the Louisiana Supreme Court case, Hebert v. Cournoyer Oldsmobile-Cadillac GMC, Inc., 419 So.2d 878, 879 (La.1982).

In Hebert, the plaintiff voluntarily dismissed a timely-filed lawsuit without prejudice through a joint motion of all parties, after the trial court granted the defendant’s motion to exclude the plaintiffs late-disclosed expert witness. Two weeks later, the plaintiff re-filed a new suit asserting the same demand after the expiration of the prescriptive period for those claims. Defendants filed an exception of prescription in response to the plaintiffs re-filed suit, which was sustained by the trial court.

On a writ of review to the Louisiana Supreme Court, the Court held that the effect on the interruption of prescription under Article 3519 (the predecessor article to Article 3463), did not apply to this case because the plaintiff voluntarily dismissed the suit after the defendants’ general appearance in the suit. As a result, the Court held that prescription was sufficiently interrupted and the plaintiffs subsequent suit was not prescribed.

However, the holding in Hebert was legislatively overruled by a 1999 amendment to LSA-C.C. art. 3463. Prior to the 1999 amendment, LSA-C.C. art. 3463 provided that interruption of prescription resulting from the filing of a suit is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, |7or fails to prosecute the suit at the trial. The 1999 amendment added language such that the article now provides as follows:

Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.

La. Civ.Code art. 3463 (2012) (emphasis added). Now under the current version of LSA-C.C. art. 3463, “any dismissal without prejudice, ‘either before the defendant has made an appearance of record or thereafter,’ may be considered a voluntary dismissal for purposes of Article 3463 so as to negate the interruption of prescription that otherwise occurs during the pendency of the action.” Dark v. Marshall, 41,711, p. 6 (La.App. 2 Cir. 12/13/06), 945 So.2d 246, 250 (citing La. Civ.Code art. 3463).

Plaintiff acknowledges that Hebert was legislatively overruled by the 1999 amendment to LSA-C.C. art. 3463, but nevertheless argues that Hebert is instructive and applicable to the instant case. Plaintiff points out that in Hebert, the Louisiana Supreme Court found plaintiff was lulled by defendants into reasonably believing that defendants had tacitly agreed not to raise any objections to the anticipated new suit. Plaintiff argues the facts of the instant case are similar because Mr. Eh-rhardt’s former counsel, Mr. Hawkins, believed that he would be able to re-file the claims asserted in the 2005 claim without objection after voluntarily dismissing those claims without prejudice.

However, the Louisiana Supreme Court in Hebert specifically noted that it did not decide the case on a theory of lulling or upon some other equitable basis. Hebert, 419 So.2d at 880. Rather, the court based its conclusion on the applicable statutory interpretation at that time, and held that because the voluntary dismissal occurred after defendants’ general appearance, prescription was interrupted. Id., 419 So.2d at 880. Likewise, in the instant case, an application of the current Inversion of LSA-C.C. art. 3463 instructs that Mr. Eh-rhardt’s voluntary dismissal of the 2005 claim negated the interruption of prescription as to his heart and lung claims that occurred when he filed the 2005 claim on July 21, 2005.

Even assuming that Hebert was decided on the basis of “lulling,” plaintiff has still not shown that lulling occurred in the instant case. Plaintiff bases its lulling argument on Mr. Hawkins’ testimony as to his understanding of an “agreement” among counsel and the court as a result of a status conference. A review of Mr. Hawkins’ testimony during the April 14, 2011 hearing on JPFD’s exception shows that the court scheduled a status conference to receive a case status update in advance of the matter proceeding to trial:

MR. HARMON:
Did you have any discussions that may have involved the Court regarding the status of settlement or the status of the case, or do you recall?
MR. HAWKINS:
Well, the relevant one was the telephone status conference that the parties had prior to the Motion to Dismiss without Prejudice. When the Court asked for a status update and both parties advised him that we were attempting to resolve it and that we were close and we anticipated it happening quickly and that we did not see this matter proceeding to trial.

The record does reveal any such agreement between the parties as to Mr. Eh-rhardt’s ability to voluntarily dismiss his pending claim and then re-file the same claim without objection. However, the record does clearly show that the 2005 claim was voluntarily dismissed by Mr. Ehrhardt on September 30, 2009, which, as set forth in plaintiffs brief, was one day before the matter was set for trial on October 1, 2009.

The applicable prescriptive period for the plaintiffs claims at issue is found in LSA-R.S. 23:1209(C). This statute sets forth the prescriptive period for claims 19of unpaid medical benefits under Louisiana’s Worker’s Compensation Law. It provides:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

LSA-R.S. 23:1209(C) (emphasis added).

The record reflects that Mr. Eh-rhardt was diagnosed with “heart and lung disease” on April 7, 2005. Therefore, any claim for medical benefits had to be filed within one year of that date. Mr. Eh-rhardt’s 2005 claim was timely filed on July 21, 2005, thereby interrupting prescription. See LSA-C.C. art. 3462. However, this claim was voluntarily dismissed by Mr. Ehrhardt’s counsel on September 30, 2009. Under a clear interpretation of LSA-C.C. 3463, the interruption of prescription that initially occurred when the suit was filed on July 21, 2005 is considered never to have occurred, in light of Mr. Ehrhardt’s September 30, 2009 voluntary dismissal, regardless of whether the claim was dismissed with or without prejudice. Accordingly, because the 2005 claim was voluntarily dismissed on September 30, 2009, the heart and lung claims asserted in the plaintiffs subsequent 2009 claim and 2011 claim have prescribed. This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

In plaintiffs second assignment of error, it argues that the proposed settlement agreement reached by both parties during the October 2008 mediation indicates an acknowledgment such that prescription was interrupted.

LSA-C.C. art. 3464 provides that “[prescription is interrupted when one acknowledges the right of the person against whom he had commenced to | inprescribe.” La. Civ.Code art. 3464 (2012). An acknowledgment is “the recognition of the creditor’s right or obligation that halts the progress of prescription before it has run its course.” Gary v. Camden Fire Ins. Co., 96-0055, p. 4 (La.7/2/96), 676 So.2d 553, 556 (citation omitted). “It involves an admission of liability, either through explicit recognition of a debt owed, or through actions of the debtor that constitute a tacit acknowledgment. Id., 96-0055 at 4-5, 676 So.2d at 556. A tacit acknowledgment arises from a debtor’s acts of reparation or indemnity, unconditional offers or payments, or actions which lead the creditor to believe that the debtor will not contest liability.” Id. 96-0055, at 5, 676 So.2d at 556 (citation omitted).

Louisiana courts read Article 3464 to require more than settlement negotiations. Mullen v. Sears, Roebuck, & Co., 887 F.2d 615, 618 (5th Cir.1989). If the negotiations do not result in an agreement that the defendant is liable for the plaintiffs injuries, there is no acknowledgment sufficient to interrupt prescription. Id. (citations omitted).

Since Mr. Ehrhardt first filed his claim for heart and lung disease in 2005, defendant has consistently denied liability for the claim. This was acknowledged by Mr. Ehrhardt’s former counsel, Mr. Hawkins:

Q: You would agree, would you not, that from the moment that the Heart and Lung Claim was filed, Jefferson Parish’s formal position has been a denial of all aspects of that heart claim, would you not?
A: Yes. Its formal position in pleadings was a total denial.

Mr. Hawkins also acknowledged that although the parties had reached a proposed settlement during the mediation, defendant’s position was still a denial of liability on the 2005 claim:

Q: You would also agree, would you not, that in these settlement documents that were drafted as a result of the mediation, that in various spots in those documents, that there officially was writing such that the settlement was being entered into but Jefferson Parish’s formal position still was that the claim was being denied?
[nA: Yes.

In addition to defendant’s consistent denial of liability for Mr. Ehrhardt’s heart and lung claim, there is jurisprudence which holds that “[i]n a workers’ compensation case, a compromise settlement is not binding and enforceable until it has been judicially approved.” In re Succession of Tilley, 99-64 (La.App. 3 Cir. 6/2/99), 742 So.2d 9, 12. Thus, although a proposed settlement agreement was reached in the instant case, that agreement was never judicially approved by the OWC. In consideration of these facts, we find that defendant did not acknowledge liability on the 2005 claim by virtue of the mediation agreement.

Plaintiff also alleges that the status conference that preceded Mr. Ehrhardt’s voluntary dismissal of the 2005 claim constituted an acknowledgment. He cites the following testimony of Mr. Hawkins in support thereof:

After having a discussion with the Court and opposing counsel on the phone it was agreed that I would dismiss without prejudice, reserving my rights, and we would continue to try to negotiate the claim, which we did. And we did make progress, but were unable to reach a final amount.
The specific discussion was that we re-file without prejudice reserving our rights, because obviously if we filed the dismissal with prejudice, it would have been a problem, and that the parties would make a final push to get this thing resolved and closed. That’s essentially what we were doing.
So I believe it was the next day, maybe two days, we would have prepared a Motion to Dismiss without prejudice and filed it. And just that, made another big push to try to resolve all of the remaining issues in the case.
I would say that all parties were aware that we were going to dismiss without prejudice, but reserving our rights to reassert our claim if we weren’t able to resolve it with a final settlement.

We find that this testimony does not indicate that defendant acknowledged liability on the 2005 claim. To the contrary, this testimony indicates that the parties were working towards an agreement, but had not yet reached one by the |iatime plaintiffs counsel voluntarily dismissed Mr. Ehrhardt’s 2005 claim. Mr. Hawkins’ testimony as to his unilateral understanding of his ability to re-file the claims asserted in Mr. Ehrhardt’s 2005 claim without an objection of prescription by JPFD is not sufficient to constitute an acknowl-edgement of those claims.

In addition, plaintiff argues that defendant’s payment of $7,500 for funeral/burial expenses operates as an acknowledgment. We disagree. The receipt and release agreement regarding the funeral/burial expenses contains specific language that the $7,500 settlement agreed upon by the parties “solely relat[es] to the claims for funeral/burial expenses” and that JPFD “specifically denies that Branch J. Ehrhardt sustained any physical injuries or occupational diseases pursuant to his duties on April 7, 2005 ...”

In light of the language limiting the $7,500 settlement to funeral/burial expenses and JPFD’s specific denial of liability for Mr. Ehrhardt’s alleged occupational disease, we find that defendant’s payment of $7,500 for funeral/burial expenses did not operate as an acknowledgment of liability on the 2005 claim.

Therefore, we conclude that defendant did not acknowledge liability on the 2005 claim. Thus, prescription was not interrupted. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In plaintiffs third assignment of error, it submits a policy argument, in which it contends that the granting of the exception of prescription is in violation of the policy considerations underlying the principle of prescription.

The Louisiana Supreme Court has held that “in the absence of a clear indication of legislative intent, prescriptive statutes which can be given more than one reasonable interpretation should be construed to maintain rather than bar the action.” Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 446 (La.1991). “The fundamental purpose of prescription statutes is only to afford a defendant security ]1sof mind and affairs if no claim is made timely, and to protect him from stale claims and the loss or non-preservation of relevant proof.” Moore v. Gencorp, Inc., 633 So.2d 1268, 1272 (La.1994).

With respect to the policy considerations behind voluntary dismissals under Article 3463, the Fourth Circuit has interpreted the predecessor to LSA-C.C. art. 3463, i.e., LSA-C.C. art. 3519, as follows:

The purpose of the article is to prohibit the plaintiff from voluntarily dismissing his suit on a cause of action and later filing a second suit on the same cause of action. By taking away the benefit of the original interruption, the article prevents the plaintiff from claiming that a new prescriptive period commenced when he dismissed the suit which had previously interrupted prescription. The basic purpose of prescription — to provide legal stability — is thus fulfilled.

Levy v. Stelly, 277 So.2d 194, 195-96 (La.App. 4 Cir.1973).

Contrary to plaintiffs contention, we find the policy considerations underlying the principle of prescription favor defendant. To allow Mr. Ehrhardt to dismiss his claim and subsequently re-file it without any time limitations would require defendant to defend against the claim indefinitely, which is precisely what the principle of prescription aims to prevent. Under the holding of Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 446 (La.1991), we find that LSA-C.C. art. 3463 cannot be given more than one reasonable interpretation. As such, we see no reason to depart from the letter of the law under Article 3463. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In plaintiffs fourth assignment of error, it argues that the supplemental and amended disputed compensation complaint filed on January 20, 2011 is timely as it relates back to the date of the original filing of the 2009 claim.

114LSA-C.C.P. art. 1153 provides that when the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

The Third Circuit has held that LSA-C.C.P. art. 1158 should be applied liberally and without undue restriction by technical rules, especially in workers’ compensation cases. Baker v. Conagra Broiler Co., 640 So.2d 494, 497 (La.App. 3 Cir.1994), writ denied, 94-1435 (La.9/23/94), 642 So.2d 1289 (citations omitted). However, “[i]n order for a second amended petition to relate back, the original petition must have been timely filed.” Raymond v. Orleans Parish Sch. Bd., 03-0560, p. 5 (La.App. 4 Cir. 9/3/03), 856 So.2d 27, 31 (citing Ford v. Murphy Oil, U.S.A., Inc., 96-2913, p. 1 (La.10/10/97), 710 So.2d 235).

In the instant case, plaintiffs 2009 claim, filed on November 6, 2009, sought “death benefits and unpaid medical bills incurred for treatment of heart and lung disease.” Plaintiffs 2011 claim, filed on January 20, 2011, sought “any and all accrued and owed benefits relating to his claim pursuant to the Heart and Lung Act, LSA-R.S. 33:2581, et seq., including but not limited to: amounts due and owing or accrued for wage benefits, medical treatment, medical costs and expenses, and other issues and claims as set forth in the WC-1008 ... including claims for penalties, attorney fees and costs.” This claim also sought medical expenses relating to Mr. Eh-rhardt’s 2003 knee injury, medical expenses relating to his lap band surgery, death benefits, autopsy expenses, attorney’s fees, and several other costs and expenses.

While plaintiffs 2011 claim arises out of the conduct, transaction, or occurrence set forth in the 2009 claim, the 2009 claim, as we have found, has prescribed. Thus, we find that because the 2009 claim is prescribed, the 2011 claim cannot relate back to that prescribed claim under LSA-C.C.P. art. 1153.

LfiPlaintiff also argues that accrued benefits owed at the time of Mr. Ehrhardt’s death, which were sought in the 2009 claim, are heritable and due to his estate. In support of this argument, plaintiff relies on Turner v. S. Wheel & Rim Serv., Inc., 332 So.2d 770 (La.1976). Plaintiff is correct in the assertion that accrued benefits owed at the time of Mr. Ehrhardt’s death are heritable. However, the rules of prescription are still applicable.

In Turner, the plaintiffs were the parents of a former employee of defendant Southern Wheel and Rim Service, Inc. Id. On November 16, 1973, their son was injured, allegedly while performing duties within the course and scope of hazardous employment. Id. Plaintiffs contended that he was totally disabled as a result of this injury. Id., 332 So.2d at 770-71. Before filing suit to claim workers’ compensation benefits, their son was killed in an accident totally unrelated to the work-connected injury. Id., 332 So.2d at 771. On November 6, 1974, plaintiffs brought a compensation suit to recover disability benefits that had accrued in their son’s favor prior to his death and the unreim-bursed medical expenses that he had incurred in treating the work-connected injury. Id. The supreme court found that the right to claim workers’ compensation benefits accrued to the employee prior to his death is heritable. Turner, 332 So.2d at 772.

We find Turner distinguishable from the present case. In Turner, the heirs brought suit within one year of the work-related injury. Here, plaintiff did not file suit within one year of the claimed work-related injury — the April 7, 2005 heart and lung disease diagnosis. Plaintiff filed suit on November 6, 2009, more than four years after the work-related injury. Since we have found that prescription was not interrupted, we find that, pursuant to LSA-R.S. 23:1209(C), the claim for accrued medical benefits had prescribed at the time plaintiff filed suit in 2009. This assignment of error has no merit.

lifiHowever, regarding the death benefits sought in the 2009 claim, “[pjursu-ant to LSA-R.S. 23:1231, death benefits are recoverable only if an employee’s death occurs within two years of the last treatment resulting from the accident by personal injury or occupational disease upon which the claim is based.” Jonise v. Bologna Bros., 01-3230 (La.6/21/02), 820 So.2d 460, 462. “This two year time period is neither a prescriptive nor peremptive period.” Id. “Rather, it ‘is a condition precedent to the accrual of the right of action for the dependents.’ ” Id. (citation omitted). Therefore, if an employee’s death occurs within two years of his last treatment resulting from the work related accident, the employee’s dependents have a right of action for death benefits pursuant to LSA-R.S. 23:1231. Id. (citations omitted).

The record indicates that Mr. Ehrhardt was receiving treatment for his condition from a cardiologist, Dr. Luis Soto, as late as 2007. Since Mr. Ehrhardt received this treatment within two years of his death on November 11, 2008, we find the condition precedent of LSA-R.S. 23:1231 is satisfied.

In addition to this condition precedent, a dependent has one year from the date of the employee’s death to file a claim for death benefits. Jonise, 01-3230 at 4, 820 So.2d at 463 (citing LSA-R.S. 23:1209(A)). Because plaintiffs 2009 claim was filed on November 6, 2009, within one year of Mr. Ehrhardt’s death on November 11, 2008, we find that plaintiffs claim for death benefits has been preserved.

INTERVENOR’S ASSIGNMENT OF ERROR

In intervenor’s assignment of error, he argues that by defendant’s payment of funeral expenses, the three year prescriptive period provided in LSA-R.S. 23:1209(0 was interrupted.

117Intervenor contends that funeral expenses constitute “medical payments,” but cites no authority in support of this contention. We disagree. In reviewing the language of LSA-R.S. 23:1209(0), we note that it relates specifically to claims for medical benefits that might be payable pursuant to LSA-R.S. 23:1203 — the statute that establishes an employer’s obligation to pay an injured employee’s medical expenses. In Boquet v. Tetra Tech., Inc., 2002-1634 (La.2/25/03); 839 So.2d 13, the Louisiana Supreme Court addressed a similar issue. Specifically, the Court determined whether an employer’s payment of workers’ compensation indemnity benefits interrupts prescription as to an employee’s claim for medical benefits under La. R.S. 23:1209(C). The Court concluded as follows:

We find the language at issue in La. R.S. 23:1209(0 is clear, unambiguous, and does not lead to absurd consequences. Subsection (C) applies to “all claims for medical benefits payable pursuant to R.S. 23:1203.”
Because the legislature chose to qualify the three-year period with the last payment of “medical” benefits, instead of simply the last payment of “benefits,” we are constrained to find that only defendants’ payment of medical benefits serves to interrupt the three-year prescriptive period established in La. R.S. 23:1209(C).

Id. at 17-18.

Therefore, we find that when LSA-R.S. 23:1209(0 speaks of payments made or not made within the three year prescriptive window, it refers to payments of medical benefits under LSA-R.S. 23:1203 only. As noted above, intervenor has failed to provide any authority in support of his argument that payment of funeral expenses constitutes payment of medical benefits under LSA-R.S. 23:1203. Moreover, the legislature has drafted two separate provisions addressing medical payments and burial expenses under the Louisiana Workers’ Compensation Act. See, LSA-R.S. 23:1210.

Furthermore, the parties’ receipt and release agreement contains specific language that the $7,500 settlement “solely relat[es] to the claims for funeral/burial | |8expenses.” In light of the foregoing, we find that medical payments do not encompass funeral/burial expenses. Therefore, we find this assignment of error has no merit.

Although not stated in his assignment of error, intervenor also seems to argue that the preparation of a Medicare Set Aside (“MSA”) constituted an acknowledgment, which in turn interrupted prescription. In support of this argument, intervenor relies on Reed v. Mid-States Wood Preservers, Inc., 43,799 (La.App. 2 Cir. 12/3/08), 999 So.2d 189, writ denied, 09-0009 (La.2/20/09), 1 So.3d 500. In Reed, the plaintiff, an employee of the defendant, Mid-States, sustained an on-the-job injury in 1998, entitling him to temporary total disability benefits. Id., 43,799 at 1, 999 So.2d at 190. In 2006, the plaintiff filed a disputed compensation claim alleging that his injury resulted in his permanent total disability. Id.

In 2005, the parties engaged in settlement negotiations. Id., 43,799 at 1, 999 So.2d at 191. The defendant claimed that because the plaintiff was Medicare eligible, the provisions of the Medicare Secondary Act necessitated that a Medicare Set-Aside Analysis (“MSA”) be conducted to determine the possible amount of the plaintiffs future medical needs. Id. During settlement negotiations, an initial MSA was performed and the results were given to the plaintiff. Id. As the settlement negotiations continued, a second MSA was performed — again, these results were shared with the plaintiff. Id. However, the parties did not reach a settlement. Id.

Because the plaintiffs disputed compensation claim was filed beyond the three-year prescriptive period as provided in LSA-R.S. 23:1209(C), he bore the burden of proving that the prescription of his claim was interrupted. Reed, 43,799 at 4, 999 So.2d at 192. The plaintiff argued that prescription was interrupted by the defendant’s acknowledgment of his claim, i.e., the transmitted MSA. Id. The | i9Second Circuit found that the MSAs transmitted to the plaintiff, although prepared in anticipation of a settlement negotiation, constituted an explicit acknowledgment of Reed’s claim, thereby interrupting prescription. Id., 43,799 at 5, 999 So.2d at 192.

We find the instant case distinguishable from Reed. In Reed, the court relied on the fact that the MSAs were transmitted to the plaintiff. In the instant case, at the hearing on the exception of prescription, Mr. Hawkins testified as follows:

Q: Do you have any reason to dispute that while a MSA was, in fact, done, it absolutely was never given to you or your client prior to mediation?
A: I agree with that.

The Reed court also relied on the fact that the MSAs did not contain a statement in which defendant denied liability. Id., 48,799 at 5, 999 So.2d at 192-98. At the hearing, Mr. Hawkins testified as follows:

Q: You would also agree, would you not, that in these settlement documents that were drafted as a result of the mediation, that in various spots in those documents, that there officially was writing such that the settlement was being entered into but Jefferson Parish’s formal position still was that the claim was being denied?
A: Yes.

Therefore, in light of the fact that the MSA was not transmitted to Mr. Ehrhardt or his attorney prior to mediation and that defendant consistently denied liability throughout negotiations and mediation, we find that the MSA did not constitute an acknowledgment interrupting prescription. This argument lacks merit.

CONCLUSION

“If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review.” Lee v. Prof'l Const. Services, Inc., 07-865, p. 6 (La.App. 5 Cir. 3/11/08), 982 So.2d 837, 840, writ denied, 08-0782 (La.6/6/08),20 983 So.2d 919. “If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id.

After considering the entire record, we find the WCJ’s findings were reasonable and not clearly wrong. Accordingly, for the reasons stated herein, the judgment granting the Jefferson Parish Fire Department’s exception of prescription as to the Estate of Branch Ehrhardt’s heart and lung claims asserted in the 2009 claim and the 2011 claim is affirmed.

AFFIRMED

      . The record indicates that on February 7, 2006, Mr. Ehrhardt re-filed with the OWC the same disputed compensation claim, Form 1008, that he previously filed with the OWC on July 21, 2005.

      . The May 13, 2011 judgment further ordered that the defendant’s exception is denied with respect to "any other claims asserted in the original and/or amended 1008."

      . In intervenor's brief, he cites LSA-R.S. 23:1201(C). We find this to be a clerical error and assume, for purposes of this opinion, that intervenor intended LSA-R.S, 23:1209(C).

      . Comment (a) of the 1982 Revision Comments to LSA-C.C. art. 3463 provides that the second sentence of LSA-C.C. art. 3463 is based on LSA-C.C. art. 3519 of the Louisiana Civil Code of 1870 and does not change the law.

      . Comment (a) of the 1982 Revision Comments to LSA-C.C. art. 3463 provides that the second sentence of LSA-C.C. art. 3463 is based on LSA-C.C. art. 3519 of the Louisiana Civil Code of 1870 and does not change the law.

      . In intervenor’s brief, he cites LSA-R.S. 23:1201 (C). We find this to be a clerical error and assume that intervenor intended LSA-R.S. 23:1209(C).


source: Caselaw Access Project

author: ROBERTA. CHAISSON, Judge.

license: Public Domain

text:
    George BAILEY v. BLAKE’S BAR.
    No. 12-CA-437.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      Hollis Shepherd, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Scott P. Shea, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAYOIS, ROBERT A. CHAISSON and STEPHEN J. WINDHORST.
   ROBERTA. CHAISSON, Judge.

| aThis is an appeal by defendant, Blake’s Bar, from a judgment awarding workers’ compensation benefits to plaintiff, George Bailey. For the following reasons, we sustain defendant’s peremptory exception of prescription, and dismiss the matter with prejudice.

FACTS AND PROCEDURAL HISTORY

Mr. Bailey was working two jobs at the time of the accident at issue. His regular job was as a laborer with Pipe Works Plumbing; his part time job was working two nights per week as a “bar-back” at Blake’s Bar. Both of these businesses were owned by the same person, but were separate entities. Sometime during either the late evening of July 22, or the early morning of July 23, 2009, Mr. Bailey was injured when an ice cooler weighing approximately 50 pounds rolled over his left foot.

On the afternoon of July 23, 2009, Mr. Bailey was treated at the Ochsner Medical Center for his foot injury. X-rays of his left foot and ankle were both negative. The diagnosis was contusion of the left foot with musculoskeletal pain. |sHe was discharged “in good condition to go home” with instructions to elevate the foot and apply cool compresses. He was also given crutches and a “cast shoe” which he was instructed to use for five days. He was told to avoid work for five days and was issued a note to that effect for his employer. Vicodin was prescribed for pain.

Mr. Bailey testified that he returned to his job with Pipe Works after five days, and was able to operate a piece of machinery with the “cast shoe.” He further testified that after a day or two, when he had to get on the ground and in trenches being dug for pipe, he could not perform with the “cast shoe.” He left that job on July 30, 2009, and has not worked regularly since. He never returned to any employment with Blake’s Bar after the injury to his foot.

Mr. Bailey filed a claim with the Office of Workers’ Compensation (OWC) against Blake’s Bar on July 27, 2010, over one year after the incident of July 22-23, 2009. The employer urged an exception of prescription, arguing that Mr. Bailey had one year within which to file his claim pursuant to La. R.S. 23:1209(A)(3). The exception was overruled by the OWC judge, who found that the claimant “became disabled again on July 30, 2009.” Various benefits were awarded, and this appeal followed.

LAW AND ANALYSIS

The statute at issue, La. R.S. 23:1209(A)(3), provides in pertinent part that “[w]hen the injury does not result at the time of or develop immediately after the accident, the [one-year prescriptive] limitation shall not take effect until the expiration of one year from the time the injury develops.... ” In the present case, there is no question that the injury resulted at the time of the incident with the ice chest. Mr. Bailey went to the emergency room for treatment on the evening of July 23, 2009, and was taken off of work for five days because of the injury. He 14was thus on notice that he had received a disabling injury in the workplace on July 23, 2009, and would have been entitled to benefits for that injury had he timely applied for them. Because the injury resulted and developed immediately after the accident, the prescriptive period began on July 23, 2009, and the claim prescribed on July 23, 2010, prior to the filing of the present claim. In this circumstance, the OWC judge erred in overruling the exception of prescription.

Claimant argues to the contrary that the jurisprudence interpreting the “developing injury rule” has been to the effect that when a claimant returns to work after an injury and then discovers that the injury prohibits him from fulfilling the requirements of the job, it is from the later date that prescription begins to run, citing, inter alia, Sevin v. Schwegmann Giant Supermarkets, 94-1859 (La.4/10/95), 652 So.2d 1323. In that case, the court explained that where an employee “suffers a work related injury that immediately manifests itself, but only later develops into a disability,” the one-year prescriptive period begins from the development of the disabling injury.

In the present case, the disabling condition manifested itself on the day of the accident when the treating physician ordered Mr. Bailey off of work for five days because of the injury. Although workers’ compensation statutes are to be liberally construed in favor of the worker, courts must nonetheless give force to the laws as written. Sevin v. Schwegmann Giant Supermarkets, supra. In the present case, there is no ambiguity or uncertainty as to when the condition resulting from the accident was deemed disabling. Therefore, prescription began to run on July 23, 2009, and the claim filed after July 23, 2010, has clearly prescribed,

1 ¡¡CONCLUSION

For the foregoing reasons, the judgment denying the exception of prescription is set aside, and judgment is entered sustaining the exception of prescription and dismissing the matter against Blake’s Bar, with prejudice.

REVERSED AND RENDERED


author: FREDERICKA HOMBERG WICKER, Judge. JOHNSON, J.,

text:
    STATE of Louisiana in the Interest of M.B.
    No. 12-CA-547.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      David S. Moyer, Attorney at Law, Lul-ing, LA, for Parent/Appellant.
    Sherry A. Watters, Department of Children and Family Services, Bureau of General Counsel, New Orleans, LA, for Minor/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

1 ^Appellant seeks review of a trial court judgment terminating her parental rights. For the following reasons, we affirm.

PROCEDURAL HISTORY

In August of 2009, seven-year old M.B. was placed in foster care based on lack of supervision, inadequate shelter, and allegations of physical abuse. M.B. was adjudicated a child in need of care on September 15, 2009, and since that time has remained either in the custody or under the supervision of the Department of Children and Family Services (DCFS). After reunification efforts were successfully completed, physical custody of M.B. was returned to her mother, UKB., on January 27, 2011, but legal custody remained with DCFS. On August 10, 2011, K.B. obtained legal custody of M.B., with DCFS ordered to continue supervision for three months. Prior to the end of the three-month period, on October 11, 2011, M.B. was again placed in DCFS’s custody. Rather than maintaining the prior case, DCFS closed that case and filed a new petition to have M.B. adjudicated a child in need of care. The trial court consolidated the cases without objection.

On December 6, 2011, DCFS filed a petition to terminate parental rights. Trial began on March 8, 2012, but was recessed because various witnesses had not been subpoenaed. Trial concluded on March 26, 2012. On that date, the trial judge terminated KB.’s parental rights pursuant to La. Ch.C. art. 1015(5) and (3)(i) and (j).

FACTUAL BACKGROUND

In August of 2009, M.B. was placed in foster care after she reported to school with a black eye and gave conflicting reports of the injury’s cause. A case worker inspected the child’s home and found it to be in “deplorable condition.” Following the home inspection, the case worker received multiple reports from neighbors expressing concern for M.B.’s safety. Neighbors reported that KB. prostituted in her home while the child was present and that M.B. often walked the neighborhood looking for transportation to school when she missed the school bus. When M.B. was initially placed into DCFS’s custody, she was described as feral with no social skills or structure; she did not know how to brush her teeth or maintain her personal hygiene.

|4In March of 2010, M.B. was placed with K.B.’s cousin, R.G., and his wife in Florida. K.B. later moved to Florida and her relatives fixed up a rental property that they owned and allowed KB. and M.B. to live in the home rent-free and also paid the electric bill. During their time in Florida, K.B. and M.B. received counseling and worked toward reunification. On August 10, 2011, the trial court granted K.B. legal custody of M.B. and ordered that K.B. remain under the supervision of DCFS for a period of three months.

At some point in August 2011, K.B. impulsively left Florida and returned to Louisiana, where she had no job or permanent housing established. R.G. testified that he and his wife supported K.B. financially and physically helped care for M.B. for over a year; eventually, R.G. became discouraged and “booted” K.B. out of his rental property because she consistently refused to work to provide for herself or her child. The record reflects that, after their return to Louisiana, K.B. and M.B. moved in and out of her sister’s home in St. Rose fourteen times in a two-month period and spent the rest of the time between three friends’ homes either on a couch or a floor pallet.

The testimony of school counselors reflects that M.B. reported that she did not know where she would be sleeping from day to day and that K.B.’s car was “filled to the brim” with personal belongings as if she had been living out of her car. The CASA volunteer assigned to M.B.’s case testified that this instability made M.B. uncomfortable.

Ms. Dana McGary, a child welfare specialist with the St. John Parish Department of Children and Family Services, testified that she began receiving | ¡¡phone calls or concerns about M.B.’s care within one month of K.B. relocating to Louisiana. The reports indicated that KB. did not have stable living arrangements, that she belittled M.B., and that she isolated M.B. from her family in Louisiana. The testimony reflects that M.B. was forced to go outside while K.B. smoked and was not permitted to watch television or play with toys or other children. In October of 2011, M.B.’s school contacted DCFS to report concerns for the child’s well being. M.B.’s school, which had a history with the family, had been unable to contact K.B. while M.B. was at school with symptoms of a fever, headache, and stomachache. On October 11, 2011, the trial court issued a verbal instanter order returning legal custody of M.B. to DCFS. M.B. was placed with her maternal aunt and uncle in St. Rose, Louisiana.

Dr. Scuddy Fontenelle evaluated M.B. in October of 2009 and again in November of 2011. Dr. Fontenelle found that M.B. was a child of average to above average intelligence and diagnosed her with adjustment disorder of childhood secondary to family dysfunction and emotional abuse. He reported that M.B. wanted stability in her life and was uncomfortable staying overnight with people who were unfamiliar to her. Dr. Fontenelle further indicated that M.B. is prone to symptoms of anxiety due to the uncertainty of her living arrangements. Dr. Fontenelle’s records state that M.B. reported previous domestic abuse, describing an incident where she witnessed an argument between her mother and father that resulted in her mother cutting her father with a machete. In her 2011 evaluation, M.B. reported that she was comfortable and secure living with her maternal aunt and uncle.

Dr. Fontenelle also evaluated K.B. in October of 2009 and November of 2011. Dr. Fontenelle found K.B. to be of average intelligence and diagnosed her with major depressive disorder, alcohol abuse by history, and pain disorder | (¡(physically and psychologically) by history. Dr. Fonte-nelle reported that K.B. has the intelligence to obtain employment and support herself but that her depression could affect her ability to meet certain goals. Dr. Fontenelle testified that he saw no improvement in K.B. from her 2009 to 2011 evaluations and that K.B. has no direction or plan for her life. Dr. Fontenelle indicated that visitation with K.B. could be beneficial, but testified that if K.B. continued to demonstrate her inability to parent, visitation would be contraindicated.

Ms. McGary testified that KB. has not taken advantage of free mental health treatment and does not have a permanent home or stable living arrangement. Ms. McGary directed KB. to the Alpha Daughters of Zion Outreach Center for temporary shelter and counseling. Ms. Shirley Sims, the Executive Director of the center, testified that K.B. accepted money for gasoline and food but refused counseling and hastily left the center when asked to provide emergency contact information. Ms. Sims stated that K.B. does occasionally stop by the center for a “pat on the back” but still will not speak with anyone about her parenting concerns and does not accept counseling.

Ms. McGary testified that the risks of reunification with K.B. are instability, lack of housing and income, and chronic abuse or neglect. She also stated that, although K.B. has continued monthly visitation with M.B., she has not provided the $25.00 per month child support required by her case plan. She testified that she does not expect any improvement in KB.’s situation in the near future. M.B. has reported to DCFS that she is secure and happy with her maternal aunt and uncle in Louisiana and would like to remain in their home if possible. Ms. McGary testified that DCFS’s recommendation is for M.B. to be freed for adoption.

|7L.B., the maternal aunt with whom M.B. is placed, described M.B. as a happy child who likes to play and sing. L.B. testified that she would “absolutely” adopt M.B. and continue to ensure that she receive the appropriate care and mental health treatment needed. L.B. further testified that, although M.B. is more irrational and belligerent for a short period of time after phone calls and visitation with K.B., she would allow continued contact between K.B. and M.B. because M.B. wants to know that her mother is “okay.”

DISCUSSION

Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. State ex rel. A.T., 06-0501 (La.7/6/06), 936 So.2d 79, 82. In a termination of parental rights proceeding, the law provides that a parent’s rights shall be terminated if the state proves at least one of the statutory grounds for termination of parental rights, as set forth in La. Ch.C. art. 1015, by clear and convincing evidence. State ex rel. D.D.M., 07-1017 (La.App. 5 Cir. 3/25/08), 983 So.2d 141, 145. The department need only establish one of the enumerated grounds for termination set forth in La. Ch.C. art. 1015. State in Interest of J.R., 11-351 (La.App. 5 Cir. 12/13/11), 84 So.3d 623, 628.

In addition, the trial judge must find that termination of the parent’s rights is in the best interest of the child. State ex rel. D.D.M., 07-1017 (La.App. 5 Cir. 3/25/08), 983 So.2d at 145. While parents have a fundamental liberty interest in maintaining a meaningful relationship with their children, the child has a profound interest, usually at odds with those of the parents, in terminating parental rights that inhibit secure, stable relationships found in a home with proper parental care. In balancing these two interests, the courts of this state have consistently found that the child’s interest is paramount. State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d 107; State in Interest of J.R., 11-351 (La.App. 5 Cir. 12/13/11), 84 So.3d at 628.

It is well-settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State ex rel. A.T., 06-0501 (La.7/6/06), 936 So.2d at 82-83.

The grounds for termination of parental rights in this case are:

(3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(i) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.
(j) Abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as nee-essary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.
La. Ch.C. art. 1015

|9La. Ch.C. art. 1015(3)(j) provides that termination of parental rights is proper when parental misconduct exists, which includes abuse or neglect “after the child is returned to the parent’s care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.

The legislature defined a neglected child in broad terms to enable experienced juvenile courts to apply their training and experience to the unique facts and circumstances of each case. State ex rel. J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 813 (citations omitted).

In this case, the record supports the trial court’s finding of parental misconduct and termination under La. Ch.C. art. 1015(3)(j). Within the month that K.B. obtained legal custody of M.B., she impulsively left Florida and relocated to Louisiana without a job or a place to permanently live. Dr. Fontenelle’s 2011 evaluation found no improvement in K.B.’s behavior and indicated that KB. had no direction or plan for her life. Ms. McGary testified that she did not anticipate any improvement in KB.’s situation in the near future. Although the testimony reflects that K.B. loves M.B., it is noteworthy that no individual, including K.B.’s family members, recommended reunification. K.B., for unknown reasons, has been unable to obtain employment or find a stable place to live. She has declined free mental health treatment despite a diagnosis of severe depression. The record reflects that the instability in M.B.’s life has resulted in a diagnosis of adjustment |indisorder of childhood secondary to family dysfunction and emotional abuse. Adults can take years to improve their functioning but developing children do not have such time, as children’s lives are significantly disrupted while their parents are attempting to deal with their own problems. State in Interest of J.R., 11-351 (La.App. 5 Cir. 12/13/11), 84 So.3d 623, 631; State in the Interest of C.D., 558 So.2d 806 (La.App. 5 Cir.1990).

Under the facts of this case, we cannot say that the trial court was clearly •wrong in its judgment terminating K.B.’s parental rights or in finding that termination is in M.B.’s best interest. Because we determine that the trial court was correct in its judgment terminating KB.’s parental rights under La. Ch.C. art. 1015(3)(j), we pretermit a discussion of the grounds for termination under La. Ch.C. art. 1015(3)(i) and (5). See State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d 107, 117.

K.B. also complains to this Court that DCFS did not provide adequate reunification efforts after a new petition for adjudication was filed and asserts that DCFS should have been required to file a motion under La. Ch.C. art. 672.1 to have the trial court determine whether reunification efforts were required.

La. Ch.C. art. 672.1, however, is permissive and not mandatory. It provides that the department “may” file a motion for a judicial determination that efforts to reunify the child and parent are not required; however, Article 672.1 does not compel the department to file such a motion. State ex rel. R.L.T. & S.A.T., 45,168 (La.App. 2 Cir. 1/27/10), 30 So.3d 1085, 1089; State ex rel P.A.P., 44,221 (La.App. 2 Cir. 2/4/09), 4 So.3d 182; La. Ch.C. art. 672.1. Nevertheless, the record in | nthis case demonstrates that DCFS did in fact attempt reunification efforts. Subsequent to the new adjudication, at the October 18, 2010, January 13, 2011, May 12, 2011, and August 10, 2011, review hearings, the trial court found that DCFS took reasonable efforts toward reunification in this case.

“Reasonable efforts” means the exercise of ordinary diligence and care by department caseworkers and supervisors and shall assume the availability of a reasonable program of services to children and their families. La. Ch. C. art. 603. “Reasonable efforts” does not require the department to provide rent-free housing to a parent; it does, however, require that when housing is an impediment to reunification, the department direct the parent to the appropriate agencies that may be able to assist in finding stable housing. State ex rel. A.T., 06-0501 (La.7/6/06), 936 So.2d 79, 86.

The record reflects that DCFS made reasonable efforts toward reunification for over two years before K.B. obtained legal custody of M.B. in August of 2011. The testimony presented shows that, after M.B. was again removed from KB.’s custody in October of 2011, DCFS directed K.B. to Alpha Daughters of Zion Outreach Center, where temporary shelter, food, gas money, and counseling were offered. However, Ms. Sims, the Director of the Center, testified that in order to apply for aid for permanent or stable housing, K.B. would have had to obtain a job, which she refused to do. Additionally, Ms. McGary testified that K.B. was provided brochures and information directing K.B. to properties that base rent on income. The testimony reflects that K.B. was provided but refused mental health 112treatment and consistently refused to work. DCFS is a governmental agency with thousands of cases and finite resources that cannot support KB.’s apparent need for long-term assistance. See State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d at 116.

Our review of the record reflects that the trial court did not err in finding that DCFS made reasonable efforts toward reunification. KJB.’s argument lacks merit.

CONCLUSION

Accordingly, for the reasons above, we affirm the judgment of the trial court terminating KB.’s parental rights and freeing M.B. for adoption.

AFFIRMED

JOHNSON, J., concurs with reasons.

JOHNSON, J.,

concurs with reasons.

hi, respectfully, disagree with the majority’s discussion of whether termination of K.B.’s parental rights was proper when no reasonable efforts were made by DCFS to remove the impediments to reunify M.B. with K.B. for the following reasons.

In her second assignment of error, K.B. alleges the termination of her parental rights was improper because DCFS failed to make reasonable efforts to remove the impediments to reunification by offering social services to facilitate reuniting the family unit. K.B. argues her parental rights were terminated pursuant to La. Ch.C. art. 1015(5), thus requiring the State to reasonably assist her in coordinating social services. As a result of DCFS’s failure to assist her in finding suitable housing and counseling, K.B. contends the trial court terminated her parental rights prematurely.

The trial court rendered its judgment in open court on March 26, 2012 and signed the written judgment on April 2, 2012. In its judgment, the trial court totally and irrevocably terminated and dissolved K.B.’s parental rights to M.B. pursuant to La. Ch.C. arts. 1015(3)(i), 1015(3)(j), 1015(5) and 1037. Additionally, the trial court declared M.B. free and eligible for adoption.

La. Ch.C. art. 672.1 provides, in pertinent part,

A. At any time in a child in need of care proceeding when a child is in the custody of the department, the department |¡>may file a motion for a judicial determination that efforts to reunify the parent and child are not required.
B. The department shall have the burden of demonstrating by clear and convincing evidence that reunification efforts are not required, considering the health and safety of the child and the child’s need for permanency.
C. Efforts to reunify the parent and child are not required if a court of competent jurisdiction has determined that:
(1) The parent has subjected the child to egregious conduct or conditions, including but not limited to any of the grounds for certification for adoption pursuant to Article 1015.

(Emphasis added).

In conjunction with La. Ch.C. art. 672.1(C), La. Ch.C. art. 1015 states, in pertinent part,

The grounds for termination of parental rights are:

(3) Misconduct of the parent toward this child or any other child of the parent or any other child which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(i) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.
(j) Abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the | (¡child’s age and his need for a safe, stable, and permanent home.

Although K.B. raises in her argument that her parental rights were improperly terminated pursuant to La. Ch.C. art. 1015(5), her brief fails to acknowledge the fact that her rights were also terminated pursuant to subsections (3)(i) and (3)(j) of the same Article. Because of the trial court’s findings of grounds for termination of parental rights, reunification efforts by DCFS were not required pursuant to La. Ch.C. art. 672.1(C). Actually, in accordance with La. Ch.C. art. 1037, the trial court was mandated to terminate K.B.’s parental rights after finding those grounds for termination. At that point in the matter, the issue of whether DCFS made any reasonable efforts to reunify K.B. and M.B. was inconsequential to the outcome. Furthermore, once DCFS filed its “Petition for Termination of Parental Rights and Certification for Adoption,” its goal was no longer reunification between K.B. and M.B. As such, DCFS did not continue to have an obligation to assist K.B. in removing the obstacles for reunifying her with M.B. See, State, ex rel. H.M. v. T.M., 44,446, p. 8 (La.App. 2 Cir. 5/6/09); 12 So.3d 409, 414.

For the foregoing reasons, I am of the opinion that the termination of KB.’s parental rights was proper, in accordance with La. Ch.C. art. 672.1(C). In all other respects, I agree with the majority’s opinion.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the minor and family members involved will be used to protect the child’s identity. State Dept. of Soc. Services, ex rel. S.S., 07-165 (La.App. 5 Cir. 9/25/07), 968 So.2d 199, 200.

      . DCFS was previously named the Office of Community Services.

      . The first case is docket no. 12133.

      . The second case is docket no. 12715.

      . The father’s rights were terminated pursuant to La. Ch.C. art. 1015(4) (abandonment). The father did not participate in the proceedings and has not appealed.

      . The record reflects that K.B. has not had steady employment since 2003. K.B. did work for Chisesi’s Ham Company for two days and briefly worked, but was never paid, as a vacuum salesperson. The record indicates K.B. worked occasionally while in Florida painting fences, but quit that job as she was not guaranteed full-time work and was dissatisfied with her $6.40 per hour wage for the work she performed.

      . K.B. reported back pain secondary to multiple motor vehicle accidents.

      . La. Ch.C. art. 1003(1), in pertinent part, defines abuse as:
      [A]ny of the following acts which seriously endanger the physical, mental, or emotional health and safety of the child:
      (a) The infliction or attempted infliction, or, as a result of inadequate supervision, the allowance or toleration of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person.

      . La. Ch.C. art. 1003(10), in pertinent part, defines neglect as:
      [T]he refusal or failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired.

      .Further, the 1997 comments to La. Ch.C. art. 1015 specifically state that, in the situations provided for in 1015(3)(a) through (j), the risk to the child’s future safety is insup-portably high.

      . In brief to this Court, DCFS asserts that termination of parental rights is required in this case under La. Ch.C. art. 1004.1, which provides that the Department shall seek termination of parental rights "if the child has been in state custody for seventeen of the last twenty-two months!.]” However, the record reflects that legal custody of M.B. was granted to K.B. from August 10, 2011 to October 11, 2011. Thus, we find La. Ch.C. art. 1004.1 is inapplicable to this case.

      . Although a new adjudication was instituted, the trial court consolidated the two cases without objection. The record is clear that the two cases both involve the continued custody and care of M.B. and that the parties clearly intended to merge the two actions for the court's consideration. See Louviere v. Louviere, 01-0089 (La.App. 1 Cir. 6/5/02), 839 So.2d 57, 74, writ denied, 02-1848 (La. 10/25/02), 827 So.2d 1152 and writ denied, 02-1879 (La. 10/25/02), 827 So.2d 1151 and writ denied, 02-1878 (La. 10/25/02), 827 So.2d 1151 and writ denied, 02-1877 (La. 10/25/02), 827 So.2d 1150 and writ denied, 02-1868 (La. 10/25/02), 827 So.2d 1152; Voth v. American Home Assurance Company, 219 So.2d 236, 240 (La.App. 1 Cir.1969).

      . The parties did not seek supervisory review of the trial court’s rulings finding that DCFS had made reasonable efforts toward reunification in this case.

      . K.B. did testify at the termination hearing that she submitted applications on-line for employment but had not received any job offers.

      . Because K.B. did not appeal the validity of the trial court’s findings of grounds for termination, those findings are not being reviewed.

      . See also, State in Interest of N.T., 560 So.2d 63, 66-67 (La.App. 5th Cir.1990), where it was found that since the State had proven all of the elements of either La. R.S. 13:1601(A) or 13:1601(B) (the former parental termination sections), it made no difference as to whether the State proved efforts to reunite the parent and child because a finding under any one of the parental termination sections was sufficient to sustain a judgment of termination.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Kewana DREWERY.
    No. 12-KA-236.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2013.

      Thomas F. Daley, District Attorney, Or-enthal J. Jasmin, Assistant District Attorney, Edgard, LA, for PlaintiffAppellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

1 ^Defendant, Kewana Drewery, appeals her convictions for possession with intent to distribute marijuana and possession of a firearm while in possession of a controlled dangerous substance. For the reasons that follow, we affirm defendant’s conviction for possession with intent to distribute marijuana but vacate her conviction and sentence for possession of a firearm while in possession of marijuana.

STATEMENT OF THE CASE

On January 11, 2007, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, in count one, with possession with intent to distribute marijuana, in violation of LSA-R.S. 40:966(A)(1), and in count two, with possession of a firearm while in possession of a controlled dangerous | -¡substance, in violation of LSA-R.S. M-.OSiE). At her March 5, 2007 arraignment, defendant pled not guilty. Defendant thereafter filed several pre-trial motions, including motions to suppress the statement and the evidence, which were heard and denied by the trial court.

The matter proceeded to trial before a twelve-person jury. After considering the evidence presented, the jury, on May 26, 2011, found defendant guilty as charged. On September 19, 2011, the trial court sentenced defendant, on count one, to eight years imprisonment in the Department of Corrections, suspended three of the eight years, and placed defendant on probation for three years. In addition, the trial court imposed an eight thousand dollar fine. With regard to count two, the trial court sentenced defendant to five years imprisonment without benefit of parole, probation, or suspension of sentence and imposed a fine of one thousand dollars. The trial court ordered these sentences to run concurrently. Defendant now appeals.

FACTS

Shortly after midnight on September 11, 2006, Sergeant Victor Sehilleci of the Louisiana State Police, was traveling east down Interstate 10 towards U.S. 51 when he encountered a 2006 Dodge Stratus in the left lane traveling at a slow rate of speed, approximately forty-five miles per hour, and impeding the flow of traffic. Sergeant Schilleci observed the vehicle weave and cross the fog line by about six inches on several occasions. Believing the driver to be either intoxicated or fatigued, Sergeant Schilleci conducted a traffic stop to assess the condition of the driver.

Upon stopping the vehicle, Sergeant Schilleci asked the driver, Kewana Drew-ery, to exit the vehicle and to produce her driver’s license and the vehicle registration. As she handed the officer her driver’s license, he noticed that her hand was shaking and that she appeared to be nervous. Defendant was unable to produce the vehicle registration, but rather provided the officer with a rental agreement for the vehicle. Upon reviewing the rental agreement, Sergeant Schilleci noted that the vehicle had been rented on September 10, 2006, at approximately 1:45 p.m., that a third party who was not present at the scene was named as the renter on the agreement, and that defendant was not listed as an authorized user. Sergeant Schilleci further learned that the renter of the vehicle was Jacques Rivers and that defendant’s trip was a “quick and short turn-around trip” based on the time and date referenced in the rental agreement. When Sergeant Schilleci then inquired into the nature of their trip, defendant advised him that they had come from Houston, Texas, where they had been checking on her apartment.

Based on the information gained from the rental agreement as well as his conversation with defendant, Sergeant Schilleci decided to speak to the passenger of the vehicle, co-defendant Cooks. Sergeant Schilleci went to the passenger side of the car and proceeded to ask Cooks about their trip. Cooks told him that they had been in Baytown, Texas, visiting family. During his conversation with Cooks, Sergeant Schilleci began to “detect the overwhelming odor of green marijuana coming from within the vehicle.” Sergeant Schil-leci then asked Cooks if there were any weapons in the vehicle, and Cooks advised him that there was a handgun underneath her seat, which the officer secured for safety purposes. Additionally, upon illuminating the interior of the vehicle with his flashlight, Sergeant Schilleci | ¿noticed an odor neutralizer, four cell phones, and three juveniles sitting in the back seat. After securing the weapon in his vehicle, Sergeant Schilleci spoke to defendant who again told him that they had gone to her apartment in Houston and did not visit family members. Sergeant Schilleci then advised defendant of her Miranda rights and asked her whether there was anything illegal inside the vehicle and whether there was any luggage inside the trunk. According to Sergeant Schilleci, defendant advised him that there was nothing illegal inside the vehicle and that she had a bag inside the trunk.

Pursuant to the officer’s request, defendant gave her verbal consent to search the vehicle. Upon opening the trunk, Sergeant Schilleci observed “two separate black garbage bags” which contained bales of marijuana. According to the officer, “one of the green bricks had fallen out” and was visible. Further, there were two Ziploc bags containing marijuana, one of which had opened and spilled marijuana inside the trunk.

Sergeant Schilleci then placed defendant and Cooks under arrest and transported them to the St. John the Baptist Parish lockup. While being taken into custody, Sergeant Schilleci heard defendant and Cooks make statements to each other to the effect of “we’re not going to take this charge for him, this is going to be his charge.” Once at the lockup, Sergeant Len Marie of the Louisiana State Police took possession of the evidence, advised defendant and Cooks of their rights, and conducted a brief interview with them. Before interviewing the two women, Sergeant Marie also heard them say, “I’m not taking this charge, I’m not taking his charge.” Both defendant and Cooks denied possession and knowledge of the marijuana. They advised Sergeant Marie that they knew Jacques Rivers, | nwho was listed on the vehicle rental agreement, and further told him about the black truck belonging to Jacques Rivers that was traveling with them. In addition, defendant and Cooks provided Sergeant Marie with a potential address where the black truck could be located.

Sergeant Marie traveled to the address provided by defendant and Cooks, which was an apartment complex near Lapalco Boulevard, in an attempt to locate the black truck. At this time, Sergeant Marie did not see a black truck; however, he returned later in the day and observed a black truck in the parking lot. Sergeant Marie then went to speak to the apartment complex manager who advised him that Jacques Rivers was not renting an apartment at the complex. Sergeant Marie went back to the parking lot to wait by the truck, but it was gone. Sergeant Marie subsequently called Rivers, using the phone number listed on the vehicle rental agreement. Sergeant Marie asked Rivers to come in for an interview, but Rivers refused and hung up the phone. Sergeant Marie was unable to contact Rivers again.

At trial, both defendant and Cooks testified as to the events that occurred on then-trip. On September 11, 2006, defendant called Cooks and asked her to accompany her to Houston to check on her apartment. Cooks agreed, and defendant picked her up at about 9:30 a.m., in a black Nissan Titan truck owned by Jacques Rivers, a high school acquaintance. On their way to Houston, they decided to stop in Bay-town, Texas, to visit Cooks’ daughter’s grandmother. While in Baytown, defendant received a phone call advising her that she had to report to work the next morning at six o’clock. As a result of this phone call, the two women stayed in Bay-town for a few hours, and then had to return to New Orleans instead of continuing on to Houston. While still in Baytown, Rivers, who was |7apparently also there, called defendant and offered to fill up the truck with gas. When they met at the gas station, Rivers told them that he wanted to drive his truck back home and that they could drive the rental car that he had. At that point, they switched vehicles. According to defendant and Cooks, neither of them ever went into the trunk of the vehicle. Rather, Rivers put defendant’s bag in the trunk for her.

During her testimony, Cooks admitted to owning and possessing the gun, explaining that she had obtained it after Hurricane Katrina for protection; however, she denied any knowledge of the marijuana. Defendant also denied any knowledge of the marijuana and further denied that there was a pungent odor of marijuana inside the car.

LAW AND ANALYSIS

In her sole assignment of error, defendant contends that the trial court erred in denying her motion for new trial which was based on insufficient evidence.

On August 15, 2011, defendant filed a motion for new trial, alleging that there were contested issues raised at trial that were not sufficiently proven by the State. On September 8, 2011, the court conducted a hearing on defendant’s motion. At the hearing, defense counsel argued that the State presented no evidence at trial to show that defendant had knowledge or possession of the marijuana contained in the trunk of the rental car she was driving. According to defendant, Jacques Rivers, an absent third party, was responsible for the marijuana contained in the trunk.

The State responded that although the evidence was circumstantial, it was sufficient to convince a reasonable trier of fact that defendant was guilty of | ^possession with intent to distribute marijuana. In its argument, the State noted the large amount of marijuana, the odor of the marijuana, the number of cell phones in the car, and the presence of air freshener in the car. The State further asserted that the fact that a third party may have also been involved in the transportation of the marijuana did not relieve defendant of her role in committing the charged offenses. After considering arguments of counsel, the trial judge denied defendant’s motion for new trial.

Defendant now challenges that denial. She argues that her motion for new trial was improperly denied because the State failed to prove that she had knowledge, dominion, or control of the marijuana found in the trunk. Specifically, defendant maintains that the facts established at trial indicated that the marijuana belonged to Jacques Rivers and that the police failed to properly investigate this matter, calling into question the credibility of Trooper Schilleci.

LSA-C.Cr.P. art. 851 provides, in pertinent part, that a “motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 784, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

LSA-C.Cr.P. art. 851(1) provides that, on motion of the defendant, the court shall grant a new trial whenever the verdict is contrary to the law and the evidence. A denial of a motion for new trial based on the verdict being contrary to the law and the evidence is not subject to review on appeal. State v. Condley, 04-1349 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 888-889, writ denied, 05-1760 (La.2/10/06), 924 So.2d 163. However, the Louisiana Supreme Court and this Court have addressed the constitutional issue of the sufficiency of the evidence under this circumstance. Therefore, the denial of the motion for new trial based on the sufficiency of the evidence is properly before this Court on review. State v. Baz ley, 09-358 (La.App.1/11/11), 60 So.3d 7, 19, writ denied, 11-282 (La.6/17/11), 63 So.3d 1039.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Sosa, 05-213 (La.1/19/06), 921 So.2d 94, 99. The rule as to circumstantial evidence is that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S.15:438. The reviewing court does not determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether “the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.” State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83; State v. Bazley, 60 So.3d at 19.

In the instant case, defendant challenges the evidence relating to her conviction for possession of marijuana with intent to distribute, in violation of LSA-R.S. 40:966(A)(1). The crime of possession with intent to distribute marijuana requires proof that the defendant knowingly and intentionally possessed the drug and that he or she did so with the specific intent to distribute it. State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 442, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213. Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge may be inferred from the circumstances. State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03), 841 So.2d 881, 887, writ denied, 03-909 (La.9/26/03), 854 So.2d 345.

The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. State v. Proctor, 04-1114 (La.App. 5 Cir. 3/29/05), 901 So.2d 477, 482. A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. A subject can have constructive possession if he jointly possesses drugs with a companion and if he willfully and knowingly shares with his companion the right to control the drugs. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 885.

The mere presence of the defendant in the area where a controlled dangerous substance is found does not constitute constructive possession. However, proximity to the drug may establish a pri-ma facie case of possession when colored by other evidence. State v. Bazley, 60 So.3d at 20. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: (1) the defendant’s knowledge that illegal drugs were in the area; (2) his relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users. State v. Proctor, 901 So.2d at 482.

In State v. Morgan, 557 So.2d 977 (La.App. 4 Cir.1990), writ denied, 564 So.2d 317 (La.1990), the appellate court held that the evidence was sufficient to |nshow constructive possession by the defendant of contraband found in the trunk of the vehicle in which he was a passenger. In concluding that the defendant exercised dominion and control over the illegal substances, the court considered that the defendant had permission to use the vehicle where the contraband was found; the defendant and the owner of the vehicle had a personal relationship; the defendant was wearing a beeper and had an address book indicating that he may be involved in drug trafficking; and the defendant was observed stuffing objects under the front seat of the vehicle which were later identified as a small handgun and a small quantity of narcotics.

Likewise, in State v. Robbins, 43,129 (La.App. 2 Cir. 3/19/08), 979 So.2d 630, 639, the appellate court concluded that the evidence was sufficient to prove that the defendant driver had constructive possession of the marijuana found in the trunk of the car, even though the passenger testified at trial that the driver had no knowledge that he had purchased the marijuana and put it in the trunk. In finding constructive possession, the court noted that the trunk of the car was equally accessible by both occupants of the vehicle as they embarked on a trip from Texas to Florida. Further, the marijuana was not hidden in any manner to raise a strong inference that one party may have had the complete control over the drug to the exclusion of the other. The appellate court determined that the defendant’s guilty knowledge could be inferred from the fact that the passenger smelled of marijuana, establishing defendant’s direct involvement with the drug. Moreover, the court noted that the men both gave inconsistent details about their trip and their relationship to one another.

In the instant case, we likewise find that the evidence presented by the State was sufficient to show that defendant had constructive possession of the marijuana contained in the trunk of the vehicle she was driving. At trial, Sergeant Schilleci 112testified that he stopped the vehicle defendant was driving for a traffic violation. After observing the subject vehicle weaving and crossing the fog line on several occasions, Sergeant Schilleci believed that the driver may have been impaired. Upon stopping the vehicle, Sergeant Schilleci noticed that the driver, defendant, was very nervous, and that her hand was shaking when she handed him her license. Although typical to display some nervousness, Sergeant Schilleci testified that defendant displayed continued and excessive nervousness throughout the entire traffic stop. Defendant also provided Sergeant Schilleci with a rental agreement indicating that the vehicle had been rented by an absent third party which defendant was slow to identify. Further, when asked about their travel itinerary defendant told Sergeant Schilleci that they had made a quick trip to Houston, Texas, to check on her apartment.

During his testimony, the officer stated that the quick trip, excessive nervousness, and rental vehicle obtained by an absent third party were all indicators that someone might be transporting contraband or driving a stolen vehicle. Sergeant Schille-ei then decided to speak with Cooks, who was seated in the front passenger seat of the vehicle. When asked the same questions as defendant regarding their travel itinerary, their stories contradicted one another. Cooks told Sergeant Schilleci that they had been in Baytown, Texas, visiting family. During their conversation, Cooks appeared excessively nervous and was breathing heavily. Additionally, Sergeant Schilleci detected an “overwhelming odor” of marijuana emanating from the vehicle. Cooks also turned over a firearm to Sergeant Schilleci when asked if there were any weapons in the vehicle. Moreover, the officer observed four cell phones, an odor neutralizer, and three juveniles in the vehicle. After advising defendant of her rights, she provided 11sSergeant Schilleci with her consent to search the vehicle where the marijuana and a bag containing defendant’s personal belongings were found. With regard to the odor of the marijuana, Sergeant Marie testified that when he checked the vehicle defendant was driving for other evidence, he smelled an odor of marijuana in the vehicle. Sergeant Marie further testified that when he was transporting the seized evidence, the odor of marijuana was so strong that he had to roll down the windows of his police unit and “Febreze” his back seat.

Both defendant and Cooks testified at trial that they had no knowledge of the marijuana in the trunk and that it did not belong to them. Rather, they claimed the drugs belonged to Jacques Rivers, a high school acquaintance. Defendant explained that she had borrowed Rivers’ truck to drive to Houston to check on her apartment and had asked Cooks to accompany her. They stopped in Baytown along the way to see family but had to turn around and come back before reaching Houston because defendant was called into work. Before starting their trip back to New Orleans, both women testified that Rivers called and offered to fill up his truck with gas for their trip back. The women then met Rivers at a gas station where Rivers decided he wanted to drive his truck, so they exchanged cars. According to both defendant and Cooks, they never looked, or went into the trunk of the car. Rather, Rivers placed defendant’s bag in the trunk for her. Both women testified that while following Rivers back to New Orleans, they never detected the odor of marijuana in the car.

In the present case, the jury obviously found the testimony of the State’s witnesses to be credible and rejected that of defendant and Cooks. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to evaluate the credibility of witnesses, nor to | ^overturn the trial court on its factual determination of guilt. State v. Bazley, 60 So.3d at 21.

Based on the foregoing, we find that the evidence presented by the State was sufficient to establish defendant’s constructive possession of the marijuana contained in the vehicle’s trunk with her belongings. In particular, defendant’s behavior when pulled over and questioned by police, the inconsistent stories concerning their itinerary, the short turn-around trip, the four cell phones, the rental vehicle leased to an absent third party, and the air freshener, tend to support the conclusion that defendant and Cooks had constructive possession over the contraband found in the trunk of the vehicle. Additionally, evidence of defendant’s guilty knowledge may be inferred by the women’s inconsistent stories and the strong odor of marijuana present in the vehicle, as testified to by both Sergeant Schilleci and Sergeant Marie. Lastly, we note that defendant’s intent to distribute can be inferred by the large amount of marijuana seized in the trunk where defendant’s belongings were also found. As such, the State sufficiently proved the elements of the offense of possession with intent to distribute marijuana, and we find no error in the trial court’s denial of defendant’s motion for a new trial on the basis of insufficiency of the evidence.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review of the record reveals a double jeopardy violation. The Double Jeopardy Clause of the United States Constitution and the Louisiana Constitution ^protects defendants from being punished or prosecuted twice for the same offense. United States Constitution, Amendment 5; Louisiana Constitution of 1974, Art. 1, § 15; see also LSA-C.Cr.P. art. 596. The Double Jeopardy Clause clearly “prevents an offender from being convicted of both the underlying offense for a 14:95(E) violation and the 14:95(E) violation itself.” State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1329. In State v. Thomas, 99-2219 (La.App. 4 Cir. 5/17/00), 764 So.2d 1104, writ denied, 00-1734 (La.6/22/01), 794 So.2d 780, the appellate court concluded that the defendant’s prosecution for both possession of cocaine with intent to distribute, pursuant to LSA-R.S. 40:967(C), and possession of a firearm while in possession of the same cocaine, pursuant to LSA-R.S. 14:95(E), violated the defendant’s double jeopardy rights. See also State v. Warner, 94-2649 (La.App. 4 Cir. 3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089; and State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035.

In the instant case, defendant was convicted of possession with intent to distribute marijuana, LSA-R.S. 40:966(A)(1), and possession of a firearm while in possession of that same marijuana, LSA-R.S. 14:95(E). Under the “same evidence” test, if evidence required to support a finding of guilt of one crime also supports a conviction for another offense, the defendant can be placed in jeopardy for only one of the two. State in Interest of S.L., 11-883 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 829. Employing this test, we find that the prohibition against double jeopardy was violated in this case. In particular, we find that the prosecution for possession of a firearm while in possession of marijuana required use of the same evidence presented against defendant under LSA-R.S. 40:966(A). In order to convict defendant of the weapons charge, the State was required to prove possession of a controlled dangerous substance. The one distinct act defendant 11ficommitted, the possession of marijuana, was the determinative factor in a successful prosecution of either offense. Without the possession of marijuana, either charge would have failed. State v. Sims, 44,123 (La.App. 2 Cir. 4/15/09), 7 So.3d 1288.

Where multiple punishments have been erroneously imposed in violation of double jeopardy, the proper appellate procedure is to eliminate the effect of the less severely punishable offense. State v. Garcia, 10-755 (La.App. 5 Cir. 5/10/11), 66 So.3d 24, 28. The less severely punishable offense in this case is possession of a firearm while in possession of a controlled dangerous substance, which carries a potential sentence of five to ten years, whereas possession of marijuana with the intent to distribute has a sentencing range of five to thirty years. See LSA-R.S. 14:95(E), 40:966(B)(3). Accordingly, we vacate defendant’s conviction and sentence for possession of a firearm while in possession of a controlled dangerous substance.

Our review further reveals that defendant was given an incomplete advisal regarding the post-conviction relief period under LSA-C.Cr.P. art. 980.8. Specifically, the commitment states that “defendant has 2 years to file post conviction relief after judgment of conviction becomes final.” The transcript provides that defendant was advised that she had “a two year prescriptive period in which to file for post conviction relief, which two years begins to run after the judgment of conviction have become final.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. By means of this opinion, we correct this error and inform defendant that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than |17two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922. State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-158 (La.10/16/09), 19 So.3d 473.

Our review further reveals that the trial court failed to impose the requisite probation fee under LSA-C.Cr.P. art. 895.1(E), which provides, in pertinent part:

E. When the court places any defendant convicted of a violation of the controlled dangerous substances law, R.S. 40:966 through 1034, on any type of probation, it shall order as a condition of probation a fee of not less than fifty nor more than one hundred dollars, payable to the Louisiana Commission on Law Enforcement to be credited to the Drug Abuse Education and Treatment Fund and used for the purposes provided in R.S. 15:1224.

Here, defendant was convicted of LSA-R.S. 40:966 and placed on probation. Given that defendant was placed on probation, the trial court was required to order as a condition of probation a fee of not less than fifty nor more than one hundred dollars. Accordingly, we remand the matter with instructions to the trial court to impose the mandatory fee on defendant pursuant to LSA-C.Cr.P. art. 895.1(E).

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence for possession with intent to distribute marijuana but vacate her conviction and sentence for possession of a firearm while in possession of marijuana. We remand the .matter to the trial court with instructions to impose the mandatory probationary fee pursuant to LSA-C.Cr.P. art. 895.1(E).

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

      . The Pre-Sentence Investigation indicates that defendant was not eligible for Intensive Incarceration/ Intensive Parole Supervision pursuant to LSA-R.S. 15:574.4.4 due to her conviction for the LSA-R.S. 14:95 E firearm offense.

      . Co-defendant, Glenetraveronesse Cooks, was charged in the same bill of information with the same two counts. Drewery and Cooks proceeded to trial together. Cooks has also appealed her convictions.

      . When Sergeant Schilleci approached Cooks, she was speaking to an unidentified male on the phone.

      . The handgun was located inside a gun case.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At trial, Cheryl Blades, an expert in the field of chemical analysis of marijuana, testified that she analyzed the evidence seized in connection with this case. She testified that the gross weight of the evidence was approximately thirty-seven pounds and that it tested positive for marijuana.

      . Defendant explained that Rivers knew her car was not working, and he let her borrow his truck to travel to Houston.

      . No explanation was given regarding the reason for Rivers’ presence in Baytown. On cross-examination, defendant testified that she did not know why Rivers was in Texas, and that she did not know he was going to be there until she received a phone call from him asking if she needed him to fill the truck up with gas.

      . There were also three juveniles in the car, which Schilleci noted is an indicator as well, "because a lot of drug couriers will take juveniles and put them in the vehicle in an attempt to throw law enforcement off.”

      . A violation of double jeopardy apparent on the face of the record is reviewable as error patent. State v. Thomas, 99-2219 (La.App. 4 Cir. 5/17/00), 764 So.2d 1104, 1108, writ denied, 00-1734 (La.6/22/01), 794 So.2d 780. See also State ex rel. Adams v. Butler, 558 So.2d 552, 553, n. 1 (1990).