author: KEATY, Judge.

text:
    Barbara HOUSSIERE, et al. v. ASCO USA, et al.
    No. 12-791.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 2013.
    Rehearing Denied Feb. 27, 2013.

      Donald W. Price, Kirk A. Guidry, Dué, Price, Guidry, Piedrahita & Andrews, Baton Rouge, LA, Christopher H. Hebert, Rabalais & Hebert, Lafayette, LA, David W. Robertson, Attorney at Law, Austin, TX, Steve Gunnell, Cassidy & Gunnell, Jennings, LA, for Plaintiffs/Appellants, Barbara Houssiere, et al.
    Joe B. Norman, Kelly Brechtel Becker, Mark L. McNamara, Katie Caswell Cam-bre, Liskow & Lewis, New Orleans, LA, George Arceneaux, III, Penny L. Malbrew, James D. Rhymes, Kyle Polozola, Liskow & Lewis, Lafayette, LA, for Defendant/Appellee, BP America Production Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

_[iPlaintiffs-Appellants appeal from an adverse jury verdict in this oilfield legacy lawsuit in favor of Defendant-Appellee. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

This oilfield legacy lawsuit was instituted by Plaintiffs-Appellants, the Houssiere family (hereinafter Houssieres). This lawsuit seeks to have the Houssieres’ property cleaned up by multiple defendants, including Defendant-Appellee, BP America Production Company, the successor to former oil and gas exploration and production operators on the property. The property involved in this case is located in the Jennings oilfield. One of the principal landowners in the Jennings oilfield in the early 1900s was the Houssieres’ ancestor, Eugene Houssiere (Eugene). Eugene formed the Houssiere-Latreille Oil Company (HLOC). HLOC held the property at issue in this lawsuit until the 1950s, when it was liquidated and its assets, including the property at issue, were distributed to family members from whom the Houssieres trace their chain of title.

Amoco Production Company (“Amoco”) was BP’s predecessor-in-interest. Amoco’s predecessor, Yount-Lee Oil Company (“Yount-Lee”), leased portions of the HLOC lands in 1928 (the 1928 lease). Pursuant to the 1928 lease, Yount>-Lee and its successor, Stanolind Oil and Gas Company (“Stanolind”), drilled wells on the property and established production facilities. In 1953, Stanolind released the 1928 lease.

Thereafter, HLOC granted two new leases to Stanolind covering portions of the property (the 1953 leases). Stanolind subsequently reduced its activities on the property and released all of the property from coverage of the 1953 leases, except 12for two five-acre tracts surrounding two producing wells. The Houssieres leased the acreage released from Stanolind to other operators. As of 1989, Stanolind and/or its successors no longer operated on the property. Stanolind and/or its successors retained rights for those two producing wells and the five-acre tracts around them until 1991, when Stanolind and/or its successors sold its leasehold interest.

The Houssieres thereafter filed suit in 2006 and pursued claims for specific performance-remediation and remediation damages. In May 2011, BP filed a motion for summary judgment based on, inter alia, the express provision for stipulated damages in an amount of $200 per acre contained in the 1953 leases. The trial court denied BP’s motion. BP then filed a motion in limine seeking to exclude all evidence of the dollar amount of damages on the grounds that the Houssieres were seeking specific performance. The trial court subsequently granted BP’s motion in limine.

The case was tried to a jury over three separate weeks in August, September, and October 2011. Much of the time at trial dealt with disputes concerning prescription and BP’s responsibility for two specific large pits. Both of these issues were the subject of writ grants by this court. Prior to trial on August 25, 2011, this court granted a writ and reversed summary judgment for BP on the basis of prescription. During trial on September 26, 2011, this court reversed a partial directed verdict in favor of BP on the large pits issue. These two rulings left the prescription and large pits issues for the jury to determine. The jury, however, never reached those issues.

| o,Folio wing a verdict finding that BP and its predecessor-in-interest, Amoco, did not cause environmental damage to the Houssieres’ property, the Houssieres asked the trial court to set a trial on the amount of the damages found by the jury in interrogatory twelve to have been negligently caused by BP. This motion was denied. Instead, the trial court entered judgment for BP, dismissing all of the Houssieres’ claims. The Houssieres perfected this appeal.

STANDARD OF REVIEW

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), citing Arceneaux v. Domingue, 865 So.2d 1380, 1333 (La.1978). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id.

DISCUSSION

In their appeal, the Houssieres contend the trial court erred in refusing to allow the jury to consider evidence of damages, thereby improperly separating the trial of liability and damages without the Houssi-eres’ consent. The Houssieres allege the jury manifestly erred in finding BP did not breach its contract and there was no environmental damage. The Houssieres contend the trial court erred in admitting irrelevant and prejudicial evidence offered by BP and in excluding relevant and probative evidence offered by the Houssieres, which, in turn, led to erroneous jury findings. Finally, the Houssieres argue the trial court erred by interpreting Act 312 of 2006 to impose substantive limits on the Houssieres’ rights under mineral lease contract law and tort law.

|4I. Bifurcation and Waiver of Tort Damages

The Houssieres refer to the jury’s finding in interrogatory twelve wherein the jury found BP negligently caused damage to their property. In light of the jury’s finding, the Houssieres contend it was error for the trial court to fail to submit the issue of money damages to the jury. Additionally, the trial court denied the Hous-sieres’ post-verdict motion asking the trial court to set a trial on the amount of damages found by the jury in interrogatory twelve and dismissing the Houssieres’ claims. As a result, the Houssieres contend the trial court bifurcated the trial and then canceled the second half in violation of La.Code Civ.P. art. 1562(A), which allows separate trials of liability and damages only “with the consent of all parties.”

In opposition, BP contends there was no bifurcation order in this case. BP further argues the Houssieres waived their tort damages claim in their opposition to BP’s motion for summary judgment by abandoning their claim for remediation damages, making the decision solely to pursue specific performance. BP contends the Houssieres’ argument that they were deprived of their rights to pursue a claim for monetary damages for the alleged contamination despite their explicit election of remedy contradicts the supreme court’s decision in Corbello v. Iowa Production, 02-826 (La.2/25/03), 850 So.2d 686.

In the present case, the pertinent article at issue with respect to bifurcation is La. Code Civ.P. art. 1562(A) (emphasis added), which states:

If it would simplify the proceedings or would permit a more orderly disposition of the case or otherwise would be in the interest of justice, at any time prior to trial the court may order, with the consent of all parties, separate trials on the issues of liability and damages, whether or not there is to be a jury trial on either issue.

See also Davis v. Am. Home Prods. Corp., 02-0942 (La.App. 4 Cir. 3/26/03), 844 So.2d 242 (bifurcation refers to separately phased trials). After a review of the 1 ^record, we are unable to locate any bifurcation order in accordance with La.Code Civ.P. art. 1562.

Additionally, the record contains the following colloquy between the Houssieres’ counsel and the trial court during the hearing on BP’s motion for summary judgment:

MR. PRICE: We’re not asking BP to ■write us a check, we’re asking to have our property cleaned up through this process. And that’s our point. We’re not making a punitive damages claim. We’re not making — you know, none of these people are going to claim that their lives were severely disrupted by this damage to their property and they’ve suffered, you know, grievous mental anguish or anything of that nature.
MR. PRICE: We’re not asking for a check.
THE COURT: ... So, what you’re saying is that /all are suing for specific performance.
MR. PRICE: Correct. Correct. [W]e didn’t say it explicitly. But that is where we are today. We are asking for specific performance. That’s what we want.

The record also contains the trial court’s judgment denying BP’s motion for summary judgment which states, in pertinent part (emphasis added):

Stipulated Damages. BP’s Motion for Summary Judgment seeking dismissal of restoration damages claims based on the stipulated damages provision of the two 1953 Mineral Leases is denied, based on the oral stipulation that Plaintiffs’ claims are limited to claims for specific performance of actual remedial work claimed, pursuant to La.R.S. 30:29, rather than for damages.

The record also contains the transcript of the hearing on BP’s motion in limine to exclude evidence of any monetary relief that the Houssieres discussed in their expert reports submitted prior to BP’s motion for summary judgment which states, in pertinent part:

THE COURT: Under the 1953 lease, you’re asking for a specific performance. So there should be no issue of damages in this case. And the Court is going to grant the defendant’s motion on that.
Jfc-"
MR. PRICE: Well, but — Your Honor, if I may — I mean, until recently. Since Act 312, in 2006, was granted, it’s been clear that this was going to be a cleanup case, that we were not going to walk away with any money. So—
THE COURT: But you were asking for it.
MR. PRICE: Well, I asked for it. But I asked for it in January of 2006. And the act passed later that year.

The record also contains the trial transcript. In speaking directly to the jury during their opening statement, the Hous-sieres’ counsel explained that “money damages are not an issue in this case” and that “plaintiffs are suing for what’s called specific performance of the contract” to have the “property cleaned up.” Mr. Price stated that because the Houssieres were suing for specific performance, the jury was “not going to be asked to award any damages in this case.”

The foregoing evidence shows the Hous-sieres did not pursue remediation damages. Rather, the Houssieres pursued a claim for specific performance to have BP remediate any environmental damage to the property. The Houssieres’ assertion that the trial court erred in refusing to allow the jury to consider evidence of monetary damages that they expressly elected not to pursue contradicts the supreme court’s holding in Corbello. Accordingly, the Houssieres’ argument that the trial court improperly bifurcated the trial in ■violation of La.Code Civ.P. art. 1562 is without merit.

|7II. Breach of Contract

The Houssieres allege the jury’s finding that BP did not breach its contract was manifestly erroneous. The Houssi-eres rely heavily upon the testimony of BP’s corporate representative, Troy Vick-ers (Vickers), who testified the pits were not closed because “[w]e [BP] missed these.” The Houssieres contend Vickers’ testimony is both an admission that BP inadvertently failed to close pits that should have been closed and an unkept promise that BP would close the pits in accordance with Louisiana Department of Natural Resources (DNR) requirements. The Houssieres contend Vickers’ testimony constitutes BP’s confession that it breached its express contractual duty to remediate the open pits and its implied duty to satisfy the reasonably prudent operator standard pursuant to the mineral code, La.R.S. 31:122.

The Houssieres allege the jury erred by answering “no” to interrogatory eight which asked whether BP’s breach of its legal duty to close the pits also constituted a breach of the lease. The Houssieres contend the provisions of the 1953 lease required BP to close the pits on the property, which BP admittedly failed to do. Because BP, via Vickers, confessed that it never closed the pits, the Houssieres allege the jury’s finding that BP did not breach the contract was in error.

|RThe Houssieres contend the jury’s finding that there was no “environmental damage” in their answer to interrogatory thirteen was erroneous since the jury found that BP caused damage in interrogatory twelve. The Houssieres allege their experts testified that the safety of the environment was put at risk by the contamination present on this land. Moreover, BP, via Vickers, allegedly confessed that BP did not comply with the regulations set forth in Statewide Order 29-B — regulations that were put in place for the same environmental, health, and safety reasons that prompted the enactment of La.R.S. 30:29, i.e., Act 312. As such, the Houssi-eres argue the jury’s finding that, while the property was damaged, it was not environmentally damaged, is clearly wrong.

In opposition, BP contends it did not breach its contractual obligations. BP argues the Houssieres brought contractual claims under both the 1928 lease and the 1953 lease. The 1928 lease allegedly contained no provision requiring the lessee (Yount-Lee, later Stanolind) to restore the property upon expiration of the lease. While the 1953 lease allegedly included an express provision regarding restoration of the property, namely the obligation to refill any ditches, pits, or reservoirs, BP contends the Houssieres ignore the unambiguous condition that the provision is only applicable “[s]hould the Lessee dig ditches, reservoirs, etc.” BP contends the Houssi-eres, therefore, had the burden of proof to show that BP constructed all of the pits BP allegedly failed to close. Critically, BP contends the Houssieres failed to provide sufficient evidence demonstrating that any of the pits that were not closed were actually dug by Stanolind, Amoco, or BP following the execution of the 1953 lease.

In further opposition, BP contends Vick-ers did not confess that BP breached its contractual obligations. In discussing the restoration obligation under the 1953 lease, BP alleges Vickers stated that he believed BP exceeded what was required of |9it, in terms of contractual obligations, by closing a pit that was constructed prior to 1953. BP alleges the Houssieres improperly rely on Vickers’ statement regarding Amoco’s customary practice in the 1980s to close historic pits that it had used in its operations. BP alleges Amoco’s decision to close pits as part of a regulatory regime adopted decades after operations ended cannot be translated into a contractual obligation between the parties.

BP further contends that the Houssi-eres’ argument regarding environmental damage finds no support in the record. The Houssieres allegedly cite to snippets of testimony of their own experts for the proposition that they proved that there is “likely ... adverse effects to the environment.” BP alleges the totality of the testimony of all the experts, both the Houssi-eres’ and BP’s, fully supports the jury’s finding of no environmental damage.

In the present case and with respect the breach of contract issue, the record contains Vickers’ testimony which provides, in pertinent part:

A. That pit was being used before this '53 lease. And so I think we exceeded what was required here in the '53 lease.
A. By closing that pit.

The record also contains the following colloquy between the Houssieres’ counsel and Vickers:

Q. Notwithstanding BP’s willingness today to go out and close these pits that you’ve talked about, the fact of the matter is, 25 years ago, they were required to do that, and it did not happen; is that correct?
A. [W]e were regulatorily required to close the pits. We were regulatorily required to document the pits. So 29(B) regulations were there.
|inI’m not doubting — not saying that we didn’t comply with 29(B). And we’ll have to deal with that issue — not through this court but we’ll have to deal with the regulatory agencies on that.

After reviewing the record, we find the Houssieres’ use of Vickers’ testimony as a purported judicial confession that BP breached its contract is misplaced. The record shows that Vickers was clear in distinguishing between compliance with standards and contracts that applied in the 1920s through the 1950s, when the pits were used, and latter-day regulatory practices. Importantly, Vickers’ testimony does not support a reversal of the trial court’s decision because his testimony does not establish that Stanolind, Amoco, or BP failed to close any pits established after 1953, as would be required to find a breach of contract. The jury, therefore, did not err in finding BP did not breach its contractual obligations. The July’s finding is affirmed in this regard.

With respect to the environmental damage issue, the record contains the testimony of the Houssieres’ expert, Dr. Sherwood Gagliano (Dr. Gagliano). Dr. Gagliano tested for alleged contamination only in small, discrete areas of the property, primarily the two large earthen storage tanks that BP maintained it did not use. The Houssieres’ expert, Dr. William J. Rogers (Dr. William Rogers), admitted, “I have some data, but I don’t have the data that I need.” The Houssieres’ expert, Dr. Gary Barbee (Dr. Barbee), also explained that he did not do an actual toxicological analysis, but instead performed a preliminary screening level risk assessment which is intentionally biased toward finding potential contamination which can be ruled out by further analysis. Dr. William Rog-ersJjjfurther conceded that all he had was a “hypothesis,” and that “more work needs to be done, in terms of characterizing it and assessing — fully assessing the ecological risk presented by the site.” Finally, Dr. William Rogers admitted that if he had performed a full-blown toxicological analysis, instead of the preliminary screening assessment, he could have definitively determined if there was not a risk to the property.

On the other hand, the record shows that BP’s expert, Dr. Glenn Millner (Dr. Millner), refuted the notion espoused by the Houssieres’ experts that the excee-dance of an initial screening standard translates into potential risk of harm or contamination. BP’s expert, Brent Pooler (Pooler), performed additional testing in order to achieve a more accurate, “site-specific” conclusion than that gleaned from the Houssieres’ experts’ initial screening standard. As a result, Pooler concluded that there are “no limitations to the potential uses of the property,” which was confirmed by Dr. Millner.

The record also contains the testimony of BP’s expert in ecological toxicology, Dr. John Rodgers (Dr. John Rodgers). He provided testimony and documentation evidencing a population of animals and vegetation on the property, further confirming Pooler’s conclusion that the property was not contaminated. Dr. John Rodgers’ site inspection of the property revealed evidence of (i) extensive growth of new trees, sensitive ferns that require clean water for growth, sensitive cattail plants that require similar growing conditions as rice farming, and (ii) deer and other animals living on the property. Dr. John Rodgers’ conclusion was that there is no current or future ecological risk on the property.

hjjn essence, the jury was provided with competing opinions. “ ‘[W]hen the district court has allowed both parties to present their experts before making its factual determinations, the fact finder’s choice of alternative permissible views cannot be considered to be manifestly erroneous or clearly wrong.’ ” Dumesnil v. Sw. La. Elec. Membership Corp., 08-982, p. 6 (La.App. 3 Cir. 2/4/09), 2 So.3d 1254, 1258, quoting Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791. Faced with these differing opinions, and pursuant to the foregoing evidence, we find the jury was not manifestly wrong in finding no environmental damage to the property. The jury’s conclusion is affirmed in this regard.

III. Evidentiary Errors

The Houssieres contend the trial court admitted irrelevant and prejudicial evidence offered by BP. Prior to trial, the Houssieres moved to exclude numerous photographs of the early development of the Jennings oilfield offered by BP on the grounds they did not depict the property at issue or conditions that existed on the property. Additionally, BP’s expert, Tonja Koob (Koob), testified about how things were done in the early oil business. Koob testified about oilfield practices at Spindle-top in Beaumont, Texas. The Houssieres contend the twenty-six photographs and Koob’s testimony led the jury to infer that such conditions had long existed on the Houssieres’ property, going back before BP’s involvement with the property, and could have caused the environmental damage that exists on their property.

The Houssieres allege the trial court excluded relevant and probative evidence offered by them. First, the trial court excluded photographs submitted by the Houssieres of other oilfield properties where BP’s expert, Arville Touchet 11s(Touchet), conducted the kind of remediation he recommended in the present matter. Since the Houssieres’ expert, Dr. Barbee, worked with Touchet on these remediation projects on other property, the trial court also limited Dr. Barbee’s testimony about the test results relating to these other projects on other property. Second, the trial court refused to allow the Houssieres to present evidence of the cost of remediation. Third, the trial court limited the testimony of the Houssieres’ experts, Dr. William Rogers and Dr. Barbee, by preventing them from testifying that the contamination present on the Houssi-eres’ property likely posed a risk to the environment and human health.

In opposition, BP contends the Houssi-eres’ argument regarding the twenty-six photographs and Koob’s testimony ignores the standard of review, the probative value of the evidence, and context. BP insists the trial court cautioned the jury multiple times that certain photographs and testimony were not depictions of the specific property at issue, but were a part of the history of the site. The Houssieres’ counsel made the very same point in his cross-examination. Therefore, BP argues that any potential prejudice was alleviated by the probative value of the historical background of the property.

BP further alleges the trial court’s exclusion of the Houssieres’ photographs and the limitation of Dr. Barbee’s testimony was proper. BP argues the testimony and photographs involved a dissimilar kind of remediation on a completely separate piece of property that had different crops. Despite the Houssieres’ claims that the jury was not able to evaluate the effects of contamination on remediated land, BP contends the trial court allowed Dr. Barbee to testify generally about the failure of the other remediation. BP insists the trial court was within its discretion in limiting irrelevant evidence.

|14In further opposition, BP contends that while the trial court properly limited the scope of the Dr. William Rogers’ and Dr. Barbee’s testimony, they were allowed to testify that there was a “potential for impact, damage or injury to human and ecological populations” that warranted further evaluation. Drs. William Rogers and Barbee presented what evidence they had, which did not include a full toxicological analysis. The jury then rejected the Houssieres’ evidence. Thus, BP contends the Houssieres were not prejudiced.

Louisiana Code of Evidence Article 401 states that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence, however, may be excluded if its probative value is outweighed by “the danger or unfair prejudice.” La.Code Evid. art. 403. Having determined that their probative value outweighed any prejudicial effect, the trial court’s ruling admitting the photographs and Koob’s testimony cannot be disturbed unless a clear abuse of discretion is shown. See Brown v. Catalyst Recovery of La., Inc., 01-1370 (La.App. 3 Cir. 4/3/02), 813 So.2d 1156, citing Quibodeaux v. Med. Ctr. of Sw. La., 97-204 (La.App. 3 Cir. 3/6/98), 707 So.2d 1380, writ denied, 98-926 (La.5/15/98), 719 So.2d 465.

In the present case, the twenty-six photographs contained in the record depict the early development of the Jennings oilfield. As mentioned above, the Jennings oilfield was the site of Louisiana’s first oil well, and the Houssieres’ ancestors largely oversaw its development. The twenty-six photographs show what was happening on the Jennings oilfield. The photographs also show, as the trial court stated for the record, the Houssieres’ “knowledge that property was damaged by oil field drilling operations.”

In rejecting the Houssieres’ argument, the trial court further noted:

11RTHE COURT: And this is all argument that can be made to the jury. I’m going to let the pictures in, because I think they are relevant in relation to what was happening on the property, certainly subject to — I think these are just other sets of it — subject to your right to—
THE COURT: ... cross examine about those pictures and what they might depict.

Based upon the foregoing, we conclude that the trial court properly considered the probative versus potentially prejudicial value of the twenty-six photographs and did not abuse its discretion in admitting them. We affirm the trial court’s ruling allowing the twenty-six photographs.

With respect to Koob’s testimony, the record shows that she was accepted, without objection by the Houssieres’ counsel, as an environmental site assessment and hydrology expert. That expertise included site history. Crucial to the site history was an explanation of the development of the Jennings oilfield, including operations that impacted the area, that occurred with the full knowledge of the Houssieres’ ancestors and which predated any involvement by BP or its predecessors. Some of Koob’s evidence also concerned pits located on the Houssieres’ property which were the primary focus of their damages claims. Accordingly, the trial court properly considered the probative versus prejudicial value of Koob’s testimony and did not abuse its discretion in allowing her testimony. We affirm the trial court’s ruling allowing Koob’s testimony.

With respect to the Houssieres’ argument that the trial court improperly limited the testimony of their expert, Dr. Barbee, and excluded certain photographs of other remediated property, the record provides:

THE COURT: Okay. I’m not allowing any of those photographs from another piece of property....
|lfiTHE COURT: But the fact that another remediation — which this witness said was not according to what he had asked for — didn’t work is not relevant in this case.
THE COURT: Well, we’re talking about sugarcane and beans, as opposed to rice [in this case]. So we’re not even talking about the same crop....

The foregoing shows the trial court excluded the testimony and photographs as they both involved a dissimilar kind of remediation on a separate piece of property that had different crops, i.e., sugarcane and beans versus rice. The trial court properly recognized that such information was not relevant. Accordingly, the trial court did not abuse its discretion in excluding the photographs and limiting Dr. Bar-bee’s testimony. We affirm the trial court’s ruling in this regard.

With respect to the Houssieres’ cost-remediation argument, and as we discussed in Section I above, the Houssieres expressly disclaimed remediation damages in favor of specific performance. Therefore, evidence of damages and the methodology and costs of remediation was irrelevant and properly excluded. We affirm the trial court’s ruling in this regard.

With respect to the Houssieres’ argument regarding the limitation of Dr. William Rogers’ and Dr. Barbee’s testimonies that contamination on the Houssieres’ property likely posed a risk to the environment and human health, the record provides the trial court’s ruling on BP’s motion to exclude or limit testimony:

[Dr. William Rogers’] conclusion is not supported by RECAP or any of the EPA standards on which it is based....
The opinions of these experts that ecological populations both on and adjacent to the property have been adversely affected by the contaminants and that the contaminants will be a source of exposure and health risks to human and ecological populations for a significant and unacceptable period of time if not removed or remediated do not [ 17have a reliable basis in the knowledge and experience of the field of toxicology.

Based on the foregoing, we find that the trial court did not abuse its discretion given that such testimony was not supported by RECAP or any of the EPA standards. The trial court’s ruling is affirmed in this regard.

IV. Act 312 of2006

The Houssieres allege the trial court’s post-verdict reading of Act 812 was incorrect as it contradicted the jury instructions. Specifically, one section of the jury instructions provided that the Houssieres were potentially entitled to breach-of-contract damages and/or tort damages (with no duplication). In another section entitled “Procedure Under La. R.S. 30:29,” the jury instructions provided that the Houssi-eres were potentially entitled to require BP to fund a eourt-approved/DNR-de-signed cleanup and to pay the Houssieres investigative and related costs. This was allegedly the basis on which the case went to the jury, and it was the basis on which the jury found in interrogatory twelve that BP was responsible for the negligently-caused damages.

The Houssieres contend that, after the verdict, the trial court completely changed its mind and held that all of the Houssi-eres’ damage claims were subsumed, absorbed, or preempted by the “Procedure Under La. R.S. 30:29.” The trial court accepted BP’s argument that Act 312 foreclosed contamination damages that are not “environmental.” As such, the Houssieres allege the trial court’s post-verdict reading of Act 312 was incorrect as the trial court’s postjverdict18 ruling contradicted its jury instructions.

The Houssieres further contend the trial court misinterpreted Act 312 pursuant to this court’s decision in State v. Louisiana Land and Exploration Co., 10-1341 (La.App. 3 Cir. 2/1/12), 85 So.3d 158, writ granted, 12-884 (La.6/15/12), 92 So.3d 340. In Louisiana Land, we held that the owners of property contaminated by excessive or unreasonable mineral lessee operations are not limited to DNR clean-up benefits but are also entitled to recover excess remediation damages. The Houssieres contend that our court’s holding in Louisiana Land is sufficient to require reversal of the trial court’s ruling.

In opposition, BP contends the Houssi-eres “have it completely backwards.” BP alleges that it was the Houssieres who asserted that their entire claim was “all” Act 312, whereas the trial court correctly noted that Act 312 only provides a procedure to enforce a remedy flowing from an underlying cause of action. BP contends Act 312, by its express terms, does not establish an independent cause of action.

BP further refers to M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16, wherein the Louisiana Supreme Court made clear in upholding the constitutionality of Act 312 that the law was procedural, not substantive, in nature. In other words, BP reads M.J. Farms to mean that there must be some substantive basis, whether in contract or tort, upon which a plaintiff states a cause of action for remediation of its property. Whatever that cause of action is, BP contends Act 312 supplies the mandatory restoration standard and procedure pursuant to M.J. Farms. According to BP, that is exactly how the trial court applied Act 312 to the Houssieres’ claims.

|1flIn the present case, and contrary to the Houssieres’ assertion, the trial court did not improperly apply Act 312 to the Houssieres’ claims. Moreover, the trial court’s application of Act 312 does not conflict with this court’s decision in Louisiana Land. Louisiana Land held that claims for excess remediation damages outside of Act 312 are available in land contamination cases. As demonstrated in the following colloquy, the Houssieres maintained throughout trial that their claims were “all Act 312”:

MR. GUIDRY: The entire claim is under Act 312. It’s all covered by Act 312.
THE COURT: No. The remedy is all Act 312. The claim is not all 312. The remedy is all Act 312.

This, indeed, is the critical point on this argument. The Houssieres never articulated a claim or presented evidence to support any recovery outside of remediation of environmental damage within the ambit of Act 312. Act 312 addresses remediation of oilfield sites to meet applicable environmental regulations. All of the Houssieres’ “damages” claims, including their proffered monetary damages, relate to the cost of performing remediation and compliance with these public regulations in a way that is subject to Act 312. Thus, even assuming that some additional private right of action for remediation might exist under Louisiana Land, the Houssieres never articulated such a claim, and never proffered evidence under such a theory. On the contrary, the Houssieres made an affirmative election to present their claims exclusively for environmental damage under Act 312. Consequently, Louisiana Land has no application to this case.

Additionally, the Houssieres’ post-verdict motion for a new trial on damages based upon the jury’s answer to interrogatory twelve was an attempt to get a second bite at the apple after the jury rejected their claims. The trial court recognized that the jury interrogatories were set up to address the Houssieres’ | g0claims as they were presented at trial, namely for environmental damage with the remedy of a cleanup. The jury, however, rejected those claims when it answered “no” to any environmental damage in response to interrogatory thirteen. The verdict form properly tracks the Houssieres’ claims under Act 312 as presented at trial, and the jury’s answers to the interrogatories wholly comport with the evidence. Accordingly, we find the trial court properly applied Act 312 to the Houssieres’ claims and affirm the trial court’s ruling in this regard.

CONCLUSION

The Houssieres have asked this court to reverse the jury verdict based on a theory of recovery that they expressly abandoned at trial and that is contrary to law. We find the jury verdict is supported by the law and the factual record. Accordingly, we affirm the trial court’s ruling.

DECREE

The judgment of the trial court is affirmed. All costs of this appeal are assessed against the Houssieres.

AFFIRMED.

      . Except when the context requires otherwise, BP and its predecessors will be referred to generally as “BP” throughout this opinion.

      . As discussed in more detail below, BP filed a Motion in Limine based upon its belief that the Houssieres elected to pursue only specific performance rather than tort damages pursuant to the Houssieres' argument in their opposition brief to BP’s motion for summary judgment.

      . In Corbello, 850 So.2d at 708, the supreme court held, in pertinent part:
      We recognize the long-standing rule that "when a party has been damaged by the conduct of another arising out of a contractual relationship, the former may have two remedies, a suit in contract, or an action in tort, and that he may elect to recover his damages in either of the two actions.” Federal Insurance Company v. Insurance Company of North America, et al., 262 La. 509, 263 So.2d 871, 872 (1972). However, although plaintiffs argue that Shell’s noncompliance under the terms of the contract also constitutes tortious conduct, plaintiffs did not bring a tort suit against Shell. Plaintiffs cannot now attach a claim under 2315.3 onto their breach of contract claim.

      . Louisiana Revised Statutes 31:122 provides:
      A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.

      . Section XI of the 1953 lease provides, in pertinent part:
      Should Lessee dig ditches, reservoirs, etc., Lessee, upon completion or abandonment of each well, shall immediately refill all such ditches, pits or reservoirs and clear the premises of all debris in order to restore the property as nearly as possible to the original condition existing at the time of granting this lease, which condition Lessor now considers satisfactory for rice farming purposes.

      . The Houssieres tendered Dr. Gagliano as an expert in the fields of geology, geography, archeology, environmental science, and interpretation of aerial photography and imagery.

      . The Houssieres tendered Dr. William Rogers as an expert in ecological risk assessment.

      . The Houssieres tendered Dr. Barbee as an expert in the fields of toxicology, human and ecological health risk assessment, and soil science.

      . BP tendered Dr. Millner as an expert in toxicology and risk assessment, including the LDEQ’s RECAP regime.

      . BP tendered Pooler as an expert in geology-

      . BP tendered Koob as an expert in environmental site assessment and hydrology.

      . Touchet was tendered by BP as an expert soil scientist.

      . The opinion’s reference to "post-verdict” means the Houssieres' Motion to Set for Trial on Damages, which they filed on October 7, 2011. BP opposed the motion and argued that Act 312 "preempts the field” of oil and gas related contamination of property, leaving landowners with only three remedies: DNR-designed cleanup of environmental damages as defined in Meaux v. Hilcorp Energy Co., 09-591 (La.App. 3 Cir. 12/9/09), 26 So.3d 875, writ denied, 10-441 (La.4/30/10), 34 So.3d 294; consequential damages resulting from such environmental damage, and; damages specified in an “express contractual provision.” The trial court accepted BP’s argument and entered judgment in favor of BP.


source: Caselaw Access Project

author: SEXTON, Judge Pro Tem.

license: Public Domain

text:
    Deborah McCLELLAND, Plaintiff-Appellee v. The CITY OF SHREVEPORT, Defendant-Appellant.
    No. 47,570-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      The Malone Law Firm, L.L.C., Shreveport, LA, by Dannye W. Malone, Joseph W. Greenwald, Jr., for Appellant.
    Kammer & Huckabay, Ltd., Shreveport, LA, by Charles H. Kammer, III, for Ap-pellee.
    Before BROWN, HARRISON (Pro Tempore) & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

hln this trip and fall case, the City of Shreveport (“the City”) appeals the ruling of the trial judge finding it to be liable for a shoulder injury sustained by Plaintiff, Deborah McClelland, when she tripped over an uneven portion of damaged concrete in a sidewalk. The City and Ms. McClelland were each found to be 50 percent at fault. Ms. McClelland was awarded $89,824.40 in damages, subject to a reduction of 50 percent. The City appeals liability only. For the reasons set forth herein, we affirm.

FACTS

At about 9:15 p.m. on October 9, 2005, Ms. McClelland was walking her dogs down the sidewalk of Kimbrough Street in the Anderson Island neighborhood of Shreveport. She had a flexible flashlight around her neck. Both dogs were on leashes, one in front of her and the other walking behind her. Ms. McClelland had lived on Kimbrough Street for 12 years and walked her dogs twice a day down this particular stretch of the sidewalk. She testified that the sidewalks on the street were very bad and she crossed the street during her walks to avoid the worst cracks and breakages in the concrete. According to Ms. McClelland, as she was trying to avoid a bad area in the sidewalk, she stepped on another uneven portion of the sidewalk and fell, dislocating and injuring her shoulder.

Ernest Negrete, the Superintendent of Streets and Drainage for the City, testified that the City relies on citizens to report problems with sidewalks. The City stipulated that it does not have a written policy with regard to inspecting sidewalks and Mr. Negrete confirmed that the City has no program or procedure for inspecting the condition of its sidewalks. 12According to Mr. Negrete, there was no way of knowing exactly what caused the crack in question, but large tree roots and faulty/old concrete contributed to the poor and damaged sidewalks in the City’s older areas such as Anderson Island. He agreed that the specific area where Ms. McClelland fell was in one such area and testified that it was a long-term problem — a problem of which the City was aware. He testified that the City rates the severity of a damaged sidewalk on a scale of 1-3-5 which determines the priority for repair, with 1 being the most severe and 5 being the least. Mr. Negrete placed the defect at issue at a 3. The record reveals that the sidewalk where Ms. McClelland fell was repaired by the City shortly after the accident.

Following the testimony, the trial judge concluded that the City was liable for the accident. The trial judge opined that the City, through Mr. Negrete, acknowledged the long-term nature of the problem and that this particular crack was dangerous enough to warrant a level 3 priority and was repaired promptly after Ms. McClel-land’s fall. On the other hand, the trial judge cited Ms. McClelland’s familiarity with the dangerous nature of the sidewalk and her failure to report the sidewalk to the City. Accordingly, the trial judge concluded that the City and Ms. McClelland were equally at fault, ie., 50 percent of the fault was allocated to the City and 50 percent to Ms. McClelland. The City appeals the finding of liability.

\ .APPLICABLE law

Ms. McClelland’s claim against the City for damages is rooted in La. C.C. Arts. 2317 and 2317.1. The specific statute for public entities which parallels article 2317.1 is La. R.S. 9:2800. These provisions establish a duty of care over the property owned by the defendant or property in his custody. Graham v. City of Shreveport, 44,994 (La.App.2d Cir.1/27/10), 81 So.3d 526, writ denied, 10-0440 (La.4/30/10), 34 So.3d 294. Under these provisions, the City, as the owner of a public right of use over the sidewalk, has the duty to ensure the public’s use and possession of the |4sidewalk. However, a municipality is not an insurer of the safety of pedestrians. The City must keep the sidewalks reasonably safe, but the maintaining of them in perfect condition is not necessary. Graham, supra, citing Boyle v. Board of Sup’rs of La. State Univ., 96-1158 (La.1/14/97), 685 So.2d 1080. Moreover, under La. R.S. 9:2800, a City cannot be liable for damages resulting from a defective condition without proof that it had actual or constructive knowledge prior to the occurrence of the particular vice or defect which caused the damage, and that the city had a reasonable opportunity to remedy the defect, but failed to do so. La. R.S. 9:2800(B); Campbell v. Louisiana Dept. of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898; Graham, supra.

The district court’s findings pursuant to La. R.S. 9:2800 are subject to manifest error review. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Johnson v. City of Winnfield, 37,939 (La.App.2d Cir.12/10/03), 862 So.2d 433. Under this standard, the appellate court will review the entire record to determine whether the trial court’s findings were clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). In order to reverse, the appellate court must find that a reasonable basis does not exist for the finding of the trial court and that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987).

DISCUSSION

In the case sub judice, the City presents three assignments of error. First, the City submits that the uneven portion of the sidewalk where |5Ms. McClelland fell is a “very minor” irregularity in the concrete and did not create an unreasonable risk of harm. Second, the City challenges the trial judge’s conclusion that the City had constructive knowledge of the defect in the sidewalk. Finally, the City asserts that the trial judge erred in finding that the City failed to take corrective action within a reasonable period of time.

Unreasonable Risk of Harm

The strict liability imposed by Article 2317 requires the plaintiff to prove that the vice or defect of the thing is a condition which poses an unreasonable risk of harm to others. Boyle, supra. Public entities are not liable for every irregularity in a street or sidewalk. Id. Rather, the determination of whether a thing presents an unreasonable risk of harm should be made “in light of all relevant moral, economic, and social considerations.” Id., citing Celestine v. Union Oil Co. of California, 94-1868 (La.4/10/95), 652 So.2d 1299, quoting Entrevia v. Hood, 427 So.2d 1146 (La.1983).

The City argues that the uneven portion of the sidewalk where Ms. McClelland tripped did not present and unreasonable risk of harm because the crack itself was minimal and open and obvious. Further, the City emphasizes that Ms. McClelland was very familiar with the sidewalk and its defective condition. For these reasons, the City asserts that it should have no liability for the accident. We are not persuaded by the City’s argument.

|fiThe uncontradicted evidence at trial established that the sidewalk was dangerous. Mr. Negrete testified that, because of the “difference of variances on the crack itself,” the defect could have been a danger to someone walking on the sidewalk. In addition, Mr. Negrete classified the defect as a “3” on the severity/repair priority scale and the defect was repaired promptly after Ms. McClelland’s fall. This court has also viewed the photographs of the crack. Based on all of the testimony and evidence presented, we find a reasonable basis in this record for the trial judge’s conclusion. Unreasonable risk of harm is a factual determination to be made on a case-by-case basis; and, in this case, we do not find manifest or clear error in the trial judge’s finding that the defect created an unreasonable risk of harm.

Constructive Knowledge

Next, the City argues that the trial court erred in finding constructive knowledge. A public entity is not required to conduct inspections of its property and the absence of such inspections does not constitute constructive knowledge of defects therein. Jones v. Hawkins, 98-1259, 98-1288 (La.3/19/99), 731 So.2d 216. Further, the lack of an inspection plan does not equate to a lack of reasonable care in properly maintaining public sidewalks. Id. However, in Graham, swpra, this court recognized |7that the supreme court’s ruling in Jones, supra, did not affect cases where the defect is shown to have existed for such a length of time that the public entity should have discovered the defect with the exercise of reasonable care. In such a case, circumstantially proven constructive notice to a public entity may arise. While this is not the same as a duty to make periodic inspections, which the Jones court rejected, the length of time that an obvious sidewalk defect exists can result in a reasonable conclusion of the municipality’s constructive knowledge.

Here, the trial judge found proof of the City’s constructive knowledge in the testimony of Mr. Negrete. Mr. Negrete testified that, in Anderson Island, the sidewalks are damaged by big tree roots and deteriorating concrete. When asked about the City’s awareness of the deteriorating sidewalks in the area, Mr. Negrete agreed that the problem was not something new to the City. In response to questioning from the trial judge, Mr. Negrete explained that the problem with the sidewalks was “long-term.” He testified that it had been a problem for “many, many, many years.” The City produced no evidence to the contrary. On this record, we find no manifest error in the trial judge’s conclusion that the City had constructive knowledge of the defects in the sidewalk.

Reasonable Opportunity to Repair— Corrective Action

The City argues that the trial judge erred in finding that the City had a reasonable opportunity to repair the defect and failed to take corrective action within a reasonable period of time. We disagree. Again, Mr. Negrete’s testimony established that the problem with the sidewalk had | Sexisted for many years and it was not a problem of which the City was unaware. From the testimony, we surmise that the cracking sidewalks in Anderson Island are a well-known hazard. It was within the trial judge’s discretion to find that the City-had ample opportunity, yet failed, to repair the defective sidewalk at issue — a sidewalk that had admittedly been part of a long-term problem of which the City was constructively aware. We will not disturb the trial judge’s finding on appeal.

Finally, we note that the City did not, alternatively, appeal the trial judge’s apportionment of fault.

CONCLUSION

For the foregoing reasons, the judgment of the trial court finding the City of Shreveport liable for the injury of Deborah McClelland and awarding her $39,824.40 in damages, subject to an allocation of fault reduction of 50 percent, is affirmed. Costs of appeal are assessed to the City of Shreveport in the amount of $262.

AFFIRMED.

      . Art. 2317. Acts of others and of things in custody
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

      . Art. 2317.1. Damage caused by ruin, vice, or defect in things
      The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

      . La. R.S. 9:2800 dealing with the limitation of liability for public bodies, provides in pertinent part, as follows:
      A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
      B. Where other constructions are placed upon state property by someone other than the state, and the right to keep the improvements on the property has expired, the state shall not be responsible for any damages caused thereby unless the state affirmatively takes control of and utilizes the improvement for the state's benefit and use.
      C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
      D. Constructive notice shall mean the existence of facts which infer actual knowledge.

      . James Holt was the Director of Operational Services, which encompassed the division responsible for sidewalk maintenance and repair, at the time the instant repair was made. Mr. Holt testified by deposition that there was no written policy for sidewalk repair, nor was there any routine procedure for sidewalk inspection. He explained that the work order for the repair of the sidewalk on Kimbrough Street where Ms. McClelland fell arrived on his desk on February 10, 2006, with a completion date of March 12, 2006. Mr. Holt further explained that the job was placed on the "in-house” list to be completed within 90-120 days. The repair was actually done on February 24 and completed on February 27, 2006.


text:
    Rose Gibson ROBERTS, Plaintiff-Appellant v. Anthony PATTERSON, et al., Defendant-Appellee.
    No. 47,576-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.
    The Smith Law Office, L.L.C. by Esk-ridge E. Smith, Jr., Bossier City, LA, Linda Lea Smith, for Appellant.
    Jeff R. Thompson, APLC, Bossier City, LA, for Appellees Anthony Patterson & Lisa Patterson, and for Intervener/Appel-lee, Investors Property Group, Inc.

      Before STEWART, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

_|jThis suit began as a possessory action and was converted to a petitory action with ownership of a certain 2.2-acre tract in Bossier Parish at issue. Following a bench trial, the judge ruled that Plaintiff Rose Roberts acquired ownership of the surface of the 2.2 acres by 80-year acquisitive prescription. That ruling was not appealed. The judge further held, however, that Ms. Roberts did not satisfy statutory requirements so as to acquire ownership of the minerals beneath the 2.2-acre tract. Ownership of the mineral interest was awarded to Intervener Investors Property Group (“IPG”). Ms. Roberts appeals the ruling on the mineral interest ownership. For the reasons stated herein, the portion of the judgment concerning ownership of the mineral interest is reversed and judgment is rendered in favor of Ms. Roberts, vesting in her the ownership of the minerals under the 2.2-acre tract.

FACTS

Ms. Roberts’ family has owned approximately 102 acres in Bossier Parish since the 1950s. Her father raised livestock on the land; and, when he died, Ms. Roberts and her brother inherited the property. The portion acquired by Ms. Roberts was delineated by a fence along the northern boundary and, she believed, all lay within Section 86. She further believed, and a previous survey indicated, that the northern boundary (fence line) of her property was the section line between Sections 25 (north) and 36 (south). The title to her property does not extend north past the section line. The 2.2 acres in dispute is actually in Section 25, but is what Ms. Roberts | ?has historically believed was the northwest corner of her property, in Section 36, and is within Ms. Roberts’ northernmost fence line.

In 1999 the 2.2 acres was included in an 80-acre tract purchased by IPG. IPG developed all of the land except the 2.2-acre tract because it was aware of Ms. Roberts’ claim of ownership. In 2000, IPG sold the majority of the 80-acre parcel, reserving the minerals, to a third party, Copeland. In that sale, the description of the land conveyed was metes and bounds and specifically EXCLUDED the 2.2 acres. IPG subsequently leased the surface of the 2.2 acres to Anthony and Lisa Patterson for pasture land. The lease was without warranty of peaceable possession. When the Pattersons erected a fence enclosing the 2.2 acres, Ms. Roberts filed this possessory action.

The Pattersons answered and IPG intervened, converting the suit to a petitory action concerning ownership of the 2.2 acres. At trial, the judge heard testimony from witnesses on Ms. Roberts’ continuous possession of the 2.2 acres. The trial judge found that a fence along the north boundary of Ms. Roberts’ property had existed since the 1950s and included the 2.2-acre tract; and, therefore, he held that she had acquired ownership of the tract by 30-year acquisitive prescription. As previously stated, no appeal was taken from that portion of the judgment.

The sole issue on appeal, rather, concerns the ownership of the mineral interest. IPG’s predeeessor-in-title had executed a mineral lease, including the 2.2 acres, in the late 1990s. IPG purchased the property subject to that lease. In 2007 and 2008, IPG leased the minerals for its 80-acre property, which included the 2.2-acre tract (in Section 25). The |aminerals have been in production with royalties paid to the present. Since Ms. Roberts mistakenly believed that all of her property was in Section 36, all of the mineral leases she signed indicated property in that section. She acknowledges, therefore, that she has not taken action to exercise use of her minerals in Section 25 (the 2.2 acres) because she thought all of her property, including the 2.2 acres, was in Section 36.

Despite the conclusion of the trial judge that Ms. Roberts had continually possessed the 2.2 acres since the 1950s, he found that, because IPG, and not Ms. Roberts, had exercised use of the minerals under the 2.2 acres, Ms. Roberts did not do what was required in order to acquire ownership of the minerals. IPG, therefore, was found to be the owner of the mineral interest. This appeal ensued.

DISCUSSION

La. R.S. 31:154, the Mineral Code, provides that a possessor of land who goes into possession “under an act translative of title” possesses “the rights in minerals inherent in perfect ownership of the land.” Further, La. R.S. 31:160 provides:

When title to land is perfected by a possessor on the basis of acquisitive prescription, the title includes mineral rights to the extent that his possession included mineral rights for the required prescriptive period.

Ms. Roberts argues that the property was acquired by her father, with various portions of mineral reservations, all of which were extinguished by nonuse. Thirty years from the date of her father’s acquisition of the property (late 1950s), therefore, would have expired by the late 1980s at the latest, over ten years prior to IPG’s purchase of the property. Under the |4above provision, ownership of the minerals would have vested in Ms. Roberts in the 1980s before any mineral activity began. We agree.

The critical finding herein is the determination by the trial judge that Ms. Roberts’ possession of the 2.2 acres was continuous for the requisite 30 years under La. C.C. art. 3486 in order to vest ownership of the property in her by acquisitive prescription. The judge properly concluded that Ms. Roberts could tack onto her possession that of her father, which the judge found began in the 1950s. Significantly, that portion of the ruling was not appealed. The starting point of the Rob-ertses’ possession, therefore, is, at the latest, 1959. Accordingly, in 1989, 30 years would have passed and ownership of the 2.2-acre tract would have fully vested in Ms. Roberts. The ownership acquired by acquisitive prescription includes the mineral rights. See La. R.S. 31:154, et seq., and comments thereto. Further, any mineral activity occurring on the 2.2 acres after 1989, which would include all of the mineral activity that began in the 1990s as evidenced by the record, would not have interrupted Ms. Roberts’ ownership of the minerals. Simply put, by the date of the purported sale of the 2.2 acres to IPG, Ms. Roberts had already acquired full ownership of the property, including the minerals. We conclude, therefore, that the trial judge’s holding to the contrary was erroneous and Ms. Roberts acquired ownership of the property in the late 1980s, both surface and minerals.

| ¡DECREE

For the foregoing reasons, the judgment against Rose Roberts and in favor of Investors Property Group is reversed as to the ownership of the mineral interest in the 2.2-acre tract at issue. Judgment is rendered in favor of Rose Roberts vesting her with ownership of the mineral interest. Costs of appeal are assessed to Investors Property Group.

REVERSED AND RENDERED.

      . La. C.C. art. 3486, Immovables; prescription of thirty years, provides:
      Ownership and other real rights in immov-ables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Sean Dee WILLIAMS, Appellant.
    No. 47,583-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.
    Peggy J. Sullivan, Monroe, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert R. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and HARRISON (Ad Hoc), JJ.
   WILLIAMS, J.

hThe defendant, Sean Dee Williams, was charged by amended bill of information with three counts of felony theft, violations of LSA-R.S. 14:67(B). The defendant pled guilty as charged to three counts of felony theft. The district court sentenced the defendant to serve ten years at hard labor. Defendant appeals his sentence as indeterminate and excessive. For the following reasons, we affirm the defendant’s convictions, vacate the defendant’s sentence and remand this matter for resentencing.

DISCUSSION

The record shows that after being advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the defendant pled guilty to three counts of felony theft. The district court then explained that although there was no agreed sentence, the court would impose concurrent sentences. At sentencing, the trial court noted its review of a presentence investigation report and stated the following:

Trial Court: So taking everything into consideration, noting that you’re not eligible for probation and I feel that any lesser sentence than what I’m about to give would deprecate the seriousness of the offense, as well as, the fact that you are a sixth felony offender, it’s going to be the sentence of this Court that you serve ten years at hard labor in the Department of Corrections for the State of Louisiana.

The trial court did not specify to which conviction the sentence applied. Defendant’s motion to reconsider sentence was denied and this appeal followed.

Error Patent

The defendant contends the district court erred in imposing an ^Indeterminate sentence. Pursuant to LSA-C.Cr.P. art. 920, we have reviewed the record for error patent and note that the district court imposed an indeterminate sentence.

LSA-C.Cr.P. art. 879 requires that the court impose a determinate sentence. State v. Weaver, 38,322 (La.App.2d Cir.5/12/04), 873 So.2d 909. Where a record fails to reflect that a defendant has been sentenced on all counts against him, the sentence imposed is rendered invalid. State v. Hood, 04-666 (La.App. 3rd Cir.2/16/05), 895 So.2d 624; State v. Bessonette, 574 So.2d 1305 (La.App. 3rd Cir.1991).

In 2009, LSA-R.S. 14:67(B)(1) provided that the penalty for theft in the amount of $500 or more was imprisonment with or without hard labor for not more than ten years, or a fine of up to $3,000, or both. In 2010, the statute was amended so that LSA-R.S. 14:67(B)(2) now provides a sentence of not more than five years for thefts of $500 or more, but less than $1,500.

In the present case, the district court sentenced the defendant to serve ten years in prison at hard labor. However, the sentencing transcript does not reflect that the court imposed a separate sentence for each of defendant’s felony theft convictions. Thus, the ten-year sentence imposed is invalid.

Because the sentence is indeterminate and constitutes error patent, we vacate the sentence and remand for resentencing in accordance with the law. This conclusion pretermits consideration of the defendant’s assignment of error alleging excessive sentence.

CONCLUSION

For the foregoing reasons, the defendant’s convictions are affirmed, [3but the sentence imposed is hereby vacated and this matter is remanded for resentencing.

CONVICTIONS AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Deshunski Dewayne BURKS, Appellant.
    No. 47,587-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Peggy J. Sullivan, Monroe, LA, for Appellant.
    Charles R. Scott, District Attorney, Brian H. Barber, Jason T. Brown, Karelia R. Stewart, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   CARAWAY, J.

| [Deshunski Dewayne Burks was convicted by a jury of distribution of cocaine. After a subsequent adjudication as a third felony offender, he received a life sentence at hard labor without benefit of parole, probation or suspension of sentence. He appeals his conviction and sentence. We affirm.

Facts

On September 22, 2010, Burks was charged with distribution of cocaine arising out of an undercover buy-bust operation in which Burks sold $100 worth of cocaine to an undercover officer. On November 29, 2010, Burks appeared for a preliminary examination. Before conducting the examination, the parties discussed the possibility of a plea agreement that had been offered to Burks by the state. The trial court explained to Burks that if he went to trial, he could receive a sentence between 2 to 30 years at hard labor and that because he had prior felonies he could be adjudicated a multiple offender and receive a life sentence because of the nature of his prior felonies. Burks declined the offer and the preliminary examination was conducted.

On January 26, 2011, Burks’ case was scheduled for a jury trial. Prior to commencement of his trial, Burks indicated that he wished to accept a plea agreement. The state explained that because trial had begun, only a guilty plea as charged would be accepted with no agreement as to his sentence and the possibility that Burks could still be charged as a habitual offender. The defense stated that its desire was for Burks to plead guilty to ]2being a second felony offender, with the trial court to determine his sentence. The trial court reiterated to Burks the standing state offer. The trial court specifically asked Burks if he understood that the state could bill him later as a habitual offender and Burks stated his understanding of that fact.

Burks then expressed his willingness to plead guilty to distribution of cocaine. The trial court informed Burks that by pleading guilty he was waiving his rights to a jury trial, to confront and cross-examine witnesses against him and his right to remain silent. Burks waived each of these rights. The trial court also advised Burks of the sentencing range for the offense of distribution of cocaine and again warned him that the state could still charge him as a habitual offender. Burks indicated his understanding of these facts. Thereafter, Burks demonstrated some reluctance when asked whether he felt coerced into pleading guilty, but ultimately stated that it was his decision. The state recited the factual basis for the plea which Burks admitted was accurate.

The trial court advised Burks that if he pled guilty he did not “have the right to appeal his decision, because [he] was pleading guilty.” Burks stated his understanding that he could not appeal. However, when the trial court then asked Burks if he was pleading guilty because he distributed cocaine, Burks stated, “I guess.” He then asked the court, “Also I can’t appeal this?” The following exchange which forms the basis for one of Burks’ assignments of error then occurred:

Trial Court: No, sir. You cannot appeal this. You have the right to what’s called post-conviction | ^relief. You have two years from the date this judgment becomes final within which to apply for post-conviction relief. Okay. But you can’t appeal—
Burks: Oh, man. Come on here, man. Please. I can’t appeal?
Trial Court: You cannot appeal.
Burks: Let’s go. I can’t appeal. Come on here, man.
Trial Court: Excuse me, Mr. Burks.
Burks: Please. Pump this sh* *t up.
Trial Court: Mr. Burks.
Burks: I ain’t with this, man.
Trial Court: Do you want to plead guilty or not?
Burks: No. I don’t want to plead guilty. Come on here, man.
Trial Court: Bring the jury in. Let’s go.

Following a jury trial, Burks was convicted as charged of distribution of cocaine. On January 26, 2011, the state filed a habitual offender bill of information charging Burks as a third felony offender based upon Burks’ previous convictions for simple robbery on August 31, 2000, and aggravated flight from an officer on March 27, 2008.

On February 24, 2011, Burks filed motions for new trial and post-verdict judgment of acquittal, alleging that the evidence was insufficient to convict him of distribution of cocaine. The trial court did not rule on the motions at that time.

On May 12, 2011, based on the evidence adduced at a habitual offender hearing, the trial court adjudicated Burks a third felony offender. 14 After the defense waived sentencing delays, the trial court sentenced Burks to mandatory life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Before sentencing Burks, the trial court noted that it had viewed Burks’ pre-sentence investigation report. On May 26, 2011, Burks filed a “Motion to Reconsider Sentence and Deviate from the Constitutionally Excessive Fourth Felony Habitual Offender Sentence” alleging that his sentence was constitutionally excessive. On June 17, 2011, the motion was denied.

On July 1, 2011, Burks filed a motion for appeal. Based upon the trial court’s failure to rule on Burks’ motion for a new trial and motion for post-verdict judgment of acquittal prior to imposing Burks’ sentence, this court vacated Burks’ sentence and remanded the matter to the trial court for resentencing. On February 8, 2012, Burks was resentenced to life in prison at hard labor without the benefit of parole, probation or suspension of sentence. On March 8, 2012, Burks filed an identical copy of his previously filed motion to reconsider sentence which was denied on February 22, 2012. The present appeal followed.

Discussion

Burks contends that the trial court erred in advising him that his sentence was not appealable because no sentence agreement or sentencing cap was part of the plea. Because his constitutional right to appeal his sentence was never waived as part of the plea agreement, Burks argues that the trial court’s erroneous advice to him violated his right to due process.

| sUnder both state and federal jurisprudence, an unqualified plea of guilty waives all nonjurisdictional defects occurring prior thereto, and precludes review thereof either by appeal or by post conviction remedy. State v. Crosby, 338 So.2d 584 (La.1976); State v. Smith, 41,829 (La.App.2d Cir.4/4/07), 954 So.2d 806. Where there is no agreement as to the defendant’s sentencing term as part of a plea agreement, however, the defendant may seek appellate review of the sentence imposed. La.C.Cr.P. art. 881.2(A)(2).

It has long been held that dissatisfaction with the sentence or expected sentence imposed is not grounds for withdrawal of a guilty plea if the accused entered the plea with the advice of competent counsel and there is no indication that a prior commitment has been broken. State v. Clark, 414 So.2d 369 (La.1982). A plea bargain, is considered to be a contract between the state and the criminal defendant. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443; State v. Waffer, 45,210 (La.App.2d Cir 8/11/10), 47 So.3d 533, writs denied, 10-2382 (La.3/4/11), 58 So.3d 474, 10-2375 (La.3/4/11), 58 So.3d 475. A defendant’s decision to plead guilty must be his free and voluntary choice. State v. Cassels, 27,227 (La.App.2d Cir.2/28/96), 669 So.2d 715; State v. Garth, 622 So.2d 1189 (La.App. 2d Cir.1993).

In this matter, the transcript shows that a sentencing agreement was not part of Burks’ proposed guilty plea. Burks’ understanding of this fact is equally clear from the record and conceded by him in brief. Thus, the trial court’s advice to Burks that if he pled guilty he did not “have the right to | (¡appeal his decision, because [he] was pleading guilty,” correctly informed the defendant of the law regarding his waiver of his right to appeal the guilty plea. No discussion of Burks’ right to appeal his habitual offender adjudication or sentence is evident on the transcript. Nor was this advice required at the time of the plea. Thus, any claim by Burks that improper sentencing advice caused him to reject the plea is unsupported by the record before us. Otherwise, the terms of the agreement were succinctly set forth to Burks who made an informed choice to reject the plea. This assignment therefore has no merit.

Burks also contends that contends that his life sentence is excessive due to the nonviolent nature of the instant conviction and his prior crimes which are less serious crimes of violence in terms of their sentencing exposure. Burks alleges that the trial court should have considered aggravating and mitigating factors in fashioning the imposed sentence.

La. R.S. 15:529.1(A)(3)(b) provides:

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

Distribution of cocaine is a violation of the Uniform Controlled Dangerous Substances Law punishable for a term of imprisonment at hard labor for not less than 2 years, nor more than 30 years. Simple robbery and |7aggravated flight from an officer are both defined as a “crime of violence” under La. R.S. 14:2(B).

Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714.

A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. Johnson, supra. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Id.

Furthermore, a trial judge may not rely solely upon the nonviolent nature of the instant or past crimes as evidence which justifies rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the main reason for declaring such a sentence excessive. State v. Johnson, supra; State v. Henry, 42,416 (La.App.2d Cir.9/19/07), 966 So.2d 692, writ denied, 07-2227 (La.8/29/08), 989 So.2d 95.

| ¡¿Burks has failed to put forth any facts or arguments, other than the nonviolent nature of the offenses, to support his conclusion that he is the exceptional defendant for whom downward departure from the mandatory minimum life sentence is required. The jurisprudence clearly holds that a defendant cannot rely solely on the nonviolent nature of his offenses to receive relief. Moreover, because the sentence imposed is prescribed by statute, the trial court’s consideration of aggravating and mitigating factors under La.C.Cr.P. art. 894.1 is not required. State v. Dukes, 46,029 (La.App.2d Cir.1/26/11), 57 So.3d 489, writ denied, 11-0443 (La.3/2/12), 83 So.3d 1033; State v. Thomas, 41,734 (La.App.2d Cir.1/24/07), 948 So.2d 1151, writ denied, 07-0401 (La.10/12/07), 965 So.2d 396. Burks received the mandatory minimum sentence set forth in La. R.S. 15:529.1(A)(S)(b). His sentence is presumed constitutional and he has failed to provide clear and convincing evidence to rebut that presumption. For these reasons, we find no merit to his claim.

Decree

For the foregoing reasons, Burks’ conviction and sentence are affirmed.

AFFIRMED.

      . The trial court denied the motions on December 9, 2011.


author: BROWN, Chief Judge.

text:
    Barbara DOUGLAS, Plaintiff-Appellee v. HEART’S DESIRE, L.L.C., Defendant-Appellant.
    No. 47,596-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Snellings, Breard, Sartor, Inabnett & Trascher, LLP, Monroe, LA, by Donald J. Anzelmo, for Appellant.
    Street & Street, Monroe, LA, by C. Daniel Street, for Appellee.
    Before BROWN, SEXTON (Pro Tempore), and HARRISON (Pro Tempore), JJ.
   BROWN, Chief Judge.

| defendant, Heart’s Desire, L.L.C., appeals from the judgment of the Workers’ Compensation Judge (“WCJ”) finding that claimant, Barbara Douglas, proved by a preponderance of the evidence that she suffered a work-related accident. For the reasons stated herein, we reverse that judgment.

Facts and Procedural Background

Claimant, Barbara Douglas, filed a claim for benefits under the Louisiana Workers’ Compensation Act against her employer, defendant, Heart’s Desire, L.L.C. Defendant provides home services to individuals requiring house cleaning, bathing assistance, food preparation, transportation, and other services that are not of a medical nature. Claimant had been employed by defendant to work as a sitter, and she had worked in that capacity for approximately one year. At the time of the alleged accident, January 17, 2011, claimant was assisting her patient, Vicky McElroy, exit a vehicle. Mr. McElroy slipped, and in the process of helping him up, claimant states that she felt a “pop” in her back. Claimant continued to work as a sitter for Mr. McElroy and other clients until January 29, 2011, at which time she took herself off work.

Claimant sought medical treatment at E.A. Conway Medical Center on January 27, 2011. The hospital records for this visit reflect a complaint of numbness in the right thigh area for two weeks, with an indication of low back pain. The records, however, do not mention a work-related accident. Claimant, thereafter, informed her supervisor, Rita Isaac, of the alleged | ^work-related accident on January 31, 2011, and requested that workers’ compensation pay for her medical care.

On February 1, 2011, claimant underwent an EMG nerve conduction study at the Green Clinic in Ruston, Louisiana. The referring physician was Dr. Steven Venters of the Union General Rural Health Clinic in Farmerville, Louisiana, where claimant had long been a patient due to an extensive history of hip problems. The reason for claimant’s referral to the Green Clinic was listed as “numbness of lower extremities” by Dr. Venters and as “right thigh numbness and low back pain” by the Green Clinic. Based upon the results of the EMG nerve conduction study, Dr. Michael Ehrlich recommended that claimant undergo an MRI of her lumbar spine.

On February 3, 2011, claimant was seen by Lynette Wade, a nurse practitioner at the Union General Rural Health Clinic. Ms. Wade referred claimant to the Medical Center of South Arkansas for an MRI of her lumbar spine. The MRI was done on February 7, 2011, and showed a right fora-minal disc protrusion with mass effect upon the right L2 nerve root at level L2-3, and at L4-5 there is a broad disc bulge and small left foraminal protrusion without significant nerve root impairment, but with mild central canal stenosis. Thereafter, Ms. Wade made an appointment for claimant to see Dr. Counts at the Orthopedic Clinic of Monroe on February 21, 2011. When claimant reported for her appointment, however, the doctor refused to see her because the workers’ compensation carrier had denied her claim.

This matter went to trial before the WCJ on February 9, 2012. At the conclusion of the trial the WCJ issued her ruling in open court. The WCJ | sfound that claimant had sustained her burden of proving a compensable accident; awarded temporary total disability benefits retroactive to the last date of employment; allowed claimant her choice of physicians in the field of orthopedics and neurology; ordered reimbursement of all out-of-pocket expenses paid as a result of the accident; and awarded a penalty of $2,000 against defendant for its failure to pay disability benefits; a penalty of $2,000 for defendant’s failure to approve medical treatment; and $7,500 in attorney’s fees.

Discussion

An employee is entitled to workers’ compensation benefits if she receives a personal injury by accident arising out of and in the course of her employment. La. R.S. 28:1031. An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 28:1021(1).

A claimant must prove by a preponderance of the evidence that an employment accident occurred and that the accident had a causal relationship to the disability claimed. Modicue v. Graphic Packaging, 44,049 (La.App.2d Cir.02/25/09), 4 So.3d 968. A causal relationship is established when the employee proves that before the accident she was in good health, but commencing with the accident the symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable possibility of causal connection between the accident and [4the disabling condition. Poland v. Kroger, No. 404, 32,576 (La.App.2d Cir.12//08/99), 747 So.2d 711, writ denied, 00-0583 (La.04/07/00), 759 So.2d 764.

If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the claimant fails to carry her burden of proof. Green v. Tompson Home Health, 46,593 (La.App.2d Cir.09/21/11), 73 So.3d 490, writ denied, 11-2460 (La.01/20/12), 78 So.3d 143. The trier of fact’s determinations as to whether a worker’s testimony is credible and whether the worker discharged her burden of proof are factual determinations, not to be disturbed upon review unless manifestly erroneous or clearly wrong. Id.; Lowe v. Skyjacker Suspensions, 45,058 (La.App.2d Cir.03/03/10), 32 So.3d 340.

In the case sub judice, claimant’s case consists of her testimony, the testimony of Mr. McElroy, and her medical records. Claimant testified that prior to the accident she had never experienced any back problems or pain, nor had she had any problems with her thigh. According to claimant’s stated time line of events, she went to Union General on January 12, 2011, complaining of right hip pain. On January 17, 2011, she hurt her back trying to help Mr. McElroy out of her car. She tried to work through the pain, but on January 27, 2011, it became so unbearable she had to go to E.A. Conway Medical Center. According to her, this was the first time she sought medical attention for her back and thigh following the accident. Claimant testified that at some point after her visit to E.A. Conway she took|fione her clients to Union General, where she encountered Ms. Wade. Claimant stated that Ms. Wade asked her why she was walking with a limp, and claimant informed her about her right thigh numbness. As a result of this encounter, claimant testified, Ms. Wade arranged for the EMG/nerve conduction study to be administered at Green Clinic on February 1, 2011.

Our thorough review of the medical records, however, leads us to question the accuracy of claimant’s testimony. Dating back approximately 4 ½ years prior to the alleged accident, claimant’s records reflect multiple complaints involving her thigh and/or back. On November 3, 2006, Union General’s records reflect that Ms. Wade entered in the “Impression” section of her records “Sciatica.” On an October 31, 2008, Clinical SOAP Note, Ms. Wade entered “Pain in joint involving pelvic region and thigh.” While there is no corresponding handwritten report, the billing summary for an October 16, 2009, visit at the Union Clinic of Marion shows the medical code 724.1 with the modifier “Pain in thoracic spine.” This was the only listed reason for the office visit.

In addition to the aforementioned references to back and/or thigh problems, the most contradicting records are those of a December 17, 2010, appointment and a January 12, 2011, appointment, one month and five days prior to claimant’s alleged accident, respectively. Claimant’s chart for December 17, 2010, lists, among other impressions, “Lumbar pain.” Meanwhile, on claimant’s January 12, 2011, visit Ms. Wade wrote that claimant’s chief complaint was “right hip pain worse since last visit” and under “Impression” she wrote “lumbar” but scratched it out and wrote “right Ifihip pain.” Additionally, the chart states “EMG/Nerve conduction lower extremity study Green Clinic.” Again, this was noted five days prior to the alleged work-related accident and the later performed EMG/Nerve conduction study ultimately led to claimant undergoing the February 7, 2011, MRI that she now uses as proof of a disabling work-related injury.

Claimant attempts to discredit these two records by arguing that the December 2010 record’s reference to “Lumbar pain” is not legible, but' if by happenstance it is what was written, it was likely written in error, just as it was an error on her January 12, 2011, visit. As for the scheduled EMG, claimant posits it was simply entered on the wrong chart.

Considering that neither Ms. Wade nor any other medical professional testified on behalf of claimant, we cannot say with any degree of certainty whether the EMG/ Nerve conduction note on claimant’s chart was in fact entered on the wrong chart. We can, however, say that the “Lumbar pain” impression was in fact listed on claimant’s December 17, 2010, chart. Although claimant may claim that it is not legible, the corresponding billing summary lists, among others, medical code 724.2 with the modifier “Lumbago.” This same medical code and modifier are the only ones listed on claimant’s February 3, 2011, billing summary, claimant’s first charted visit to Union General after the alleged accident.

Other than her own self-serving testimony, the only other testimony offered in support of claimant’s claim of a work-related injury is the testimony of Mr. McElroy, who testified that he heard claimant grunt when she first attempted to help him to his feet. When cross-examined, however, |7Mr. McElroy stated that he heard claimant grunt but that she “didn’t show no pain signs ... She went on, like I said, did what she wanted and left.” Regardless of the fact that claimant grunted while lifting Mr. McElroy, it has little bearing on whether claimant experienced a sudden event that led to her claimed disability. The totality of the evidence is to be considered to determine whether claimant suffered a work-related accident in the course of her employment.

Ultimately, the evidence in support of claimant’s claim of a work-related accident is her testimony that prior to January 17, 2011, she had never experienced problems with her back and/or thigh, and the testimony of Mr. McElroy that he heard her grunt. The medical evidence submitted, though, completely contradicts claimant’s testimony. In the 4 ½ years prior to the alleged accident, claimant’s medical records reflect multiple complaints involving her thigh and/or back. In particular, the records establish that in the month prior to the accident, claimant had complaints of lumbar pain and had been scheduled for an EMG/Nerve conduction study for her lower extremities. Claimant’s only explanation for these chart notations is error on someone else’s part. If that were the case, then claimant should have provided evidence to that effect. As it stands, the medical records call claimant’s credibility into question, and lead us to conclude that claimant’s back problems had been manifesting for at least the month prior to her alleged accident, maybe longer. This leads us to speculate that claimant was possibly injured at another time or was suffering a gradual deterioration, as opposed to a sudden onset work-related injury. Is As such, we And that the WCJ’s determination that claimant met her burden of proving by a preponderance of the evidence a causal relationship between the accident and the disability claimed was clearly wrong.

Conclusion

For the reasons stated, the judgment of the WCJ in favor of claimant, Barbara Douglas, is reversed. Judgment dismissing claimant’s claim is rendered in favor of defendant, Heart’s Desire, L.L.C. Costs of this appeal are assessed to claimant.

      . Based upon this finding, we need not address defendant's remaining assignments of error.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Bruce Edward ROBINSON, Appellant.
    No. 47,597-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, District Attorney, Jason T. Brown, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and HARRISON, Pro Tempore, JJ.
   MOORE, J.

|,The defendant, Bruce E. Robinson, was convicted on two counts of distribution of cocaine, in violation of La. R.S. 40:967.1, and one count of felony theft over $500, in violation of La. R.S. 14:67. Robinson was originally sentenced to life imprisonment on one count of distribution of cocaine and to 20 years’ imprisonment at hard labor for the felony theft, with the sentences to run concurrently with each other. No sentence was imposed on the second count of distribution. The convictions and sentences were affirmed on appeal, but the case was remanded for sentencing on the second distribution conviction. On remand, Robinson was sentenced to life imprisonment, with the sentence to run concurrently with the two sentences previously imposed. Robinson now appeals that sentence. We affirm.

FACTS

On October 22, 2009, a jury found Robinson guilty as charged of two counts of distribution of cocaine and one count of felony theft, over $500. On April 29, 2010, he was adjudicated a fourth-felony habitual offender and sentenced on one count of distribution to life imprisonment without benefit of probation, parole, or suspension of sentence. For the felony theft conviction, he was sentenced to 20 years’ imprisonment at hard labor, with the two sentences to run concurrently to each other. His motion to reconsider sentence was denied.

On appeal, this court affirmed the three convictions and the two sentences, but found that it was not clear from the record whether the trial court had actually sentenced Robinson on the second count of distribution of cocaine. State v. Robinson, 46,737 (La.App. 2 Cir. 12/14/11), 79 So.3d 1270, writ denied, 2012-0487 (La.8/22/12), 97 So.3d 978. The matter was remanded to the trial court for sentencing on the second count of distribution of cocaine. Id.

On February 1, 2012, the trial court, finding that Robinson had already been adjudicated a fourth-felony habitual offender, sentenced Robinson under La. R.S. 15:529.1 to life imprisonment, without benefits, with the sentence to run concurrently with the two prior sentences. No motion to reconsider sentence was filed. Robinson timely sought an appeal, which was granted on March 29, 2012.

The defendant timely filed his notice of intent to file a pro se brief. However, his pro se brief was untimely filed on August 21, 2012, after the 30-day deadline expired on August 12, 2012.

DISCUSSION

Robinson claims that his sentence is excessive because he is not the worst of offenders, yet the trial court imposed “the most severe and excessive sentences possible.” He claims that even though his sentence falls within the statutory guidelines, his sentence is still excessive and he should receive a less severe sentence. He claims that a life sentence at hard labor, without benefits “makes no reasonable contribution to acceptable penal goals” and that the trial court failed to consider what societal goals were served by the life sentence imposed.

The state argues that Robinson fails to present any evidence that the sentence imposed is constitutionally excessive to warrant a downward departure from the mandatory life sentence.

|sLa. R.S. 15:529.1(A)(4)(b) states that:

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

As noted by this court in Robinson’s prior appeal, Robinson was adjudicated a fourth-felony habitual offender under La. R.S. 15:529.1(A)(4)(b), based on his prior convictions for drug possession and distribution and battery of a police officer, and was subject to the mandatory life sentence for each of the two distribution convictions.

Where there is a mandatory sentence, there is no need for the trial court to justify, under Art. 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App. 2 Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35; State v. Koon, 31,177 (La.App. 2 Cir. 2/24/99), 730 So.2d 503.

In State v. Dorthey, 623 So.2d 1276 (La.1993), and State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672, the supreme court addressed the issue of mandatory sentences in the context. of the habitual offender law. The court held that the downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the Uoffense, the culpability of the offender, and the circumstances of the case.

Prior to the three instant felony convictions, Robinson had five felony convictions: illegal possession of stolen things, felony theft, possession of a controlled dangerous substance, possession of a controlled dangerous substance with intent to distribute, and battery of a police officer. Robinson has a clear history of theft and drug violations, and his intent to continue this career of crime is evidenced by the recent convictions for drug distribution and theft. Robinson has failed to rebut the presumption that his sentence was constitutional by presenting clear and convincing evidence that his situation is exceptional and warrants a departure from the mandatory sentence. This claim is without merit and, therefore, is denied.

Robinson argues that the trial court erred in not conducting another habitual offender hearing and presenting evidence to re-adjudicate him a habitual offender. This court already found sufficient evidence to convict Robinson of the three offenses and adjudicate him a fourth-felony habitual offender, so there was no need to re-adjudicate.

Robinson also argues that the district attorney’s office vindictively brought the habitual offender bill to punish him for reasons other than administering justice. Robinson provides no evidence of his claim, and the use of the habitual offender law alone is insufficient to establish prose-cutorial vindictiveness. State v. Wilson, 44,586 (La.App. 2 Cir. 10/28/09), 26 So.3d 210, writ denied, 2009-2655 (La.1/28/11), 56 So.3d 973. Furthermore, Robinson provides no evidence that he made a contemporaneous objection at the habitual offender hearing, and ^accordingly may not avail himself of any such error now that he has been adjudicated. La. C. Cr. P. art. 841; State v. Sanders, 39,645 (La.App. 2 Cir. 4/6/05), 900 So.2d 221, writ denied, 2005-1634 (La.2/3/06), 922 So.2d 1173; State v. Gaddis, 36,661 (La.App. 2 Cir. 3/14/03), 839 So.2d 1258, writ denied, 2003-1275 (La.5/14/04), 872 So.2d 519, cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487.

Robinson also claims that the district attorney’s office is targeting black offenders in habitual offender adjudications. As evidence, he states that at the state’s largest prison, only 33 of the 610 inmates sentenced under the habitual offender statute are white. Robinson fails to show that he raised the issue of selective enforcement in a motion to quash, in arguments before the trial court, or in a motion for new trial, and absent any contemporaneous objection, he may not raise a claim of selective enforcement now that he has been adjudicated. State v. Madison, 32,432 (La.App. 2 Cir. 10/27/99), 743 So.2d 920, rev’d on other grounds, 2000-0074 (La.8/31/00), 768 So.2d 593.

These three arguments are without merit.

CONCLUSION

For the reasons stated above, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCE AFFIRMED.