author: DRAKE, J.

text:
    STATE of Louisiana v. Michael WIGGINS.
    No. 2013-KA-0649.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 31, 2014.

      James D. “Buddy” Caldwell, Attorney General, Colin Clark, Assistant Attorney General, Baton Rouge, Louisiana, for Ap-pellee State of Louisiana.
    Hillar C. Moore, III, District Attorney, Dale R. Lee, Assistant District Attorney, Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, Louisiana, for Appellant Michael Wiggins.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   DRAKE, J.

The defendant, Michael Wiggins, was charged by bill of information on count one with attempted second degree murder and on count two with possession of a firearm or carrying a concealed weapon by a convicted felon, in violation of Louisiana Revised Statutes 14:27, 14:30.1, and 14:95.1. The defendant originally pled not guilty, but later withdrew that plea and pled guilty as charged on both counts. The defendant was sentenced to forty years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence on count one, and was sentenced to twenty years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence on count two. The trial court ordered that the sentences be served concurrently. The defendant now appeals, assigning error to the constitutionality of the forty-year sentence imposed on count one, to the effectiveness of counsel for failure to file a motion to reconsider sentence, and to the constitutionality of Louisiana Revised Statutes 14:95.1. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

During the Boykin examination, the State submitted the facts as elicited during the preliminary examination hearing as the basis for the plea. The | ofollowing facts were presented at the hearing on the motion for preliminary examination. On November 22, 2010, Sergeant Clarence MeGarner of the Baton Rouge Police Department responded to the scene of a shooting at a residence. After arriving at the scene, Sergeant MeGarner was advised that the defendant and the victim, Kevin White, had a dispute over cigarettes prior to the shooting. After the gunfire, a witness observed the defendant running down the street from the scene of the shooting carrying a long black handgun. Sergeant MeGarner created a photographic lineup based on the witness’s statements. While at Our Lady of the Lake Hospital in IGU, though he was unable to speak, the victim was able to identify the defendant by nodding his head to signal his selection of the photograph of the defendant from the photographic lineup. During a subsequent interview prior to the hearing, the victim gave a statement again identifying the defendant as the shooter and describing the argument that started when White tried to take one of the defendant’s cigarettes. According to the record, the defendant has a prior conviction of simple burglary of - an inhabited dwelling.

ASSIGNMENTS OF ERROR ONE AND TWO

In his first assignment of error, the defendant contends that the trial court failed to state reasons for the sentence and did not consider the individual facts and circumstances of this case. The defendant concludes that a sentence of forty years, without the benefit of probation, parole, or suspension of sentence, is unconstitutionally excessive in this case. In the second assignment of error, the defendant contends that his trial counsel’s failure to file a motion to reconsider sentence constitutes ineffective assistance of counsel in the event that review of the sentence is procedurally barred on appeal. The defendant argues that but for counsel’s failure to object, the sentencing would have been changed below or on |4appeal, maintaining that the forty-year sentence is disproportionate to the harm done and shocks one’s sense of justice. Contending his trial counsel’s deficient performance rendered the proceeding fundamentally unfair and that he was prejudiced as a result, the defendant argues that a showing of ineffective assistance of counsel has been made. The defendant specifically focuses on the forty-year sentence imposed on count one, and is not challenging the twenty-year sentence imposed on count two which, as noted above, was ordered to be served concurrently.

A review of the transcript of the defendant’s guilty plea indicates the defendant seeks review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. The term of forty years in exchange for the State’s waiver of the habitual offender allegations is specifically set forth in the record before the trial court’s acceptance of the guilty plea. The trial court noted that the sentence was being imposed in accordance with that agreement. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. La.C.Cr.P. art. 881.2(A)(2); see State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171, 1175. Moreover, where a specific sentence has been agreed to as a consequence of a plea bargain, there is no need for the trial court to comply with Louisiana Code of Criminal Procedure article 894.1(C). State v. Mareno, 530 So.2d 593, 601 (La.App. 1st Cir.), writ denied, 533 So.2d 354 (La.1988). Therefore, the fact that defense counsel did not move for reconsideration of sentence does not constitute deficient performance. Thus, assignments of error one and two are without merit.

ASSIGNMENT OF ERROR THREE

In the final assignment of error, the defendant argues that Louisiana Revised Statutes 14:95.1 is unconstitutional on its face, in light of the strict scrutiny mandated by the amended version of Louisiana Constitution article I, section 11. IsThe defendant specifically contends that Louisiana Revised Statutes 14:95.1 cannot pass strict scrutiny review because it is not narrowly tailored to achieve a compelling government interest, and it is not the least restrictive means of achieving its purported public safety interest. The defendant further argues that Louisiana Revised Statutes 14:95.1 applies to a broad range of felony convictions without reason or discretion, specifically noting that some of the felonies have at best an attenuated connection to firearm possession or use. Finally, the defendant contends that Louisiana Constitution article I, section 11 demands a less restrictive procedural application, such as allowing convicted felons to argue for the restoration of their gun rights at a hearing following the completion of their sentences.

Louisiana Revised Statutes 14:95.1, provides, in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
* * *
C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
D. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing 16fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive. [Footnote omitted.]

It was first made illegal for felons convicted of certain crimes to possess a firearm by 1975 La. Acts, No. 492, § 2 (which became La. R.S. 14:95.1). In 1980 La. Acts, No. 279, § 1, the Legislature amended Louisiana Revised Statutes 14:95.1 to add additional crimes to the list of enumerated felony convictions. The Louisiana Supreme Court upheld the constitutionality of the statute in State v. Amos, 343 So.2d 166, 168 (La.1977).

The Second Amendment to the United States Constitution and Article I, Section 11 of the Louisiana Constitution prohibit the infringement of the right to keep and bear arms. The Louisiana Legislature recently enacted 2012 La. Acts, No. 874, § 1 to amend Article I, Section 11, which, as a result, specifically states that the right of each citizen to keep and bear arms is “fundamental and shall not be infringed.” The amended version of Section 11 further states that “[a]ny restriction on this right shall be subject to strict scrutiny.” In District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 2821-22, 171 L.Ed.2d 637 (2008), the U.S. Supreme Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. As noted by the U.S. Supreme Court in McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 3042, 177 L.Ed.2d 894 (2010), a clear majority of the States in 1868 recognized the right to keep and bear arms as being among the foundational rights necessary to our system of government, and the framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. Accordingly, the right to bear arms was always fundamental. See also State v. Draughter, 2013-0914 (La.12/10/13), 130 So.3d 855, 861. The amendment to Article I, Section 11, merely sought to ensure that the review standard of an alleged infringement of this fundamental right was in keeping with the refinements made to constitutional analysis that have developed since the decision in Amos.

At the time Amos was decided in 1977, the reasonableness standard was consistent with the appellate review of other alleged infringements of constitutional rights. See City of New Orleans v. Kiefer, 246 La. 305, 314, 164 So.2d 336, 339 (1964); City of Lafayette v. Justus, 245 La. 867, 873, 161 So.2d 747, 749 (1964). See also State v. Wiggins, 432 So.2d 234, 237 (La.1983). It might be said this standard of reasonableness was the highest standard of review the court accorded to an alleged infringement of a constitutional right for that time. However, the evaluation is significantly different from the strict scrutiny now required by the present form of Article I, Section 11, as that level of analysis is understood today. Draughter, 130 So.3d at 864 at *5. While the amended version of Article I, Section 11 was not in effect at the time of the defendant’s offense herein, the amendment has prospective effect from its effective date of December 10, 2012, and has retroactive effect to this case and all cases pending on direct review or not yet final. Thus, our analysis of Louisiana | ^Revised Statutes 14:95.1 under the present facts will proceed under strict scrutiny, the standard of review provided in the amended constitutional provision.

In general, statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Griffin, 495 So.2d 1306, 1308 (La.1986). However, in Louisiana, the standard of strict scrutiny is applied to review state action that imposes a burden on a fundamental right. Under the standard of strict scrutiny, state action “may be justified only by a compelling state interest, and the state action must be narrowly confined so as to further only that compelling interest.” State v. Gamberella, 633 So.2d 595, 604 (La.App. 1 Cir.1993), writ denied, 94-0200 (La.6/24/94), 640 So.2d 1341. Accordingly, fundamental rights are not absolute, and state action may be justified, subject to strict scrutiny. See Gamberella, 633 So.2d at 604.

The record herein reflects that the defendant was on parole at the time of the arrest for the instant offenses. Thus, the precise question here is whether Louisiana Revised Statutes 14:95.1 unconstitutionally infringes upon the defendant’s right to possess a firearm, as a convicted felon who was still under the State’s supervision, but was no longer in its physical custody. Inmates in a custodial setting “have 19neeessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others.” Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). As noted by the Louisiana Supreme Court in Draughter, this characterization applies equally to those convicted felons who are serving sentences of probation or parole. By necessity, the State must exercise continuing supervision and control over these convicted felons as they complete the punishments which have been meted out for their criminal activity. The Court further stated,

For these persons still under state supervision, we easily find there to be a compelling state interest for the state’s limited infringement of even fundamental constitutional rights, including the right to possess a firearm. These persons are still serving a portion of a criminal sentence. There will necessarily be intrusion into their lives by state actors administering the supervision required by their status. The possession of a firearm is inconsistent with that status and would subject the individuals tasked with their supervision to an untenable safety risk.

Draughter, 130 So.3d at 865 at *9-*10. Having found the statute serves a compelling governmental interest as applied to a person still under State supervision, the Court further found that Louisiana Revised Statutes 14:95.1 also satisfies the requirement that it be narrowly tailored to serve that compelling interest. In doing so, the Court specifically noted that the statute advances the state’s interest in preventing persons under State supervision from possessing firearms, that the rule is reasonably necessary, and that it is the least restrictive means to serve and further the State’s interest. Draughter, 130 So.3d at 860 at *10.

Under Louisiana Revised Statutes 14:95.1, it is not the possession or concealment of a weapon standing alone that is a felony. Possession or carrying a concealed weapon is made a felony only when the person committing the act has [ inpreviously been convicted of one of the enumerated offenses. The act of possessing or concealing a weapon becomes a felony only because the offender has the status of a convicted felon. See State v. Williams, 358 So.2d 943, 947 (La.1978). Moreover, based upon the language of Louisiana Revised Statutes 14:95.1, the legislature has limited the application of the statute to certain specified serious felony offenses, has further limited the applicability of the statute to ten years following the date of completion of sentence, probation, parole, or suspension of sentence, and has specifically defined “firearm.” As noted, the defendant herein argues that some of the felonies enumerated in Louisiana Revised Statutes 14:95.1 have an attenuated connection to firearm possession or use. For example, in this case, the underlying crime is simple burglary of an inhabited dwelling, a felony offense that is not connected to the possession or use of a firearm. Nonetheless, the defendant subsequently possessed a firearm and used it to attempt to kill the victim, causing a spinal cord injury that left the victim paralyzed from the neck down. Thus, the defendant clearly demonstrated a dangerous disregard for the law in committing subsequent, life-threatening criminal activity. As the Court held in Draughter, when applied to a convicted felon still under State supervision, Louisiana Revised Statutes 14:95.1 does not unconstitutionally infringe upon the right to bear arms secured by Article I, Section 11 of the Louisiana Constitution. Accordingly, assignment of error number three is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

      . As discovered during our review for error pursuant to Louisiana Code of Criminal Procedure article 920(2), we note that the sentence imposed on count two is illegally lenient, as it does not include the fine mandated by Louisiana Revised Statutes 14:95.1(B). However, since the sentence is not inherently prejudicial to the defendant, and neither the State nor the defendant has raised this sentencing issue on appeal, we decline to correct this error. See State v. Price, 2005-2514 (La.App. 1 Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La.2/22/08), 976 So.2d 1277.

      . Notice was provided to the Attorney General, as required by Louisiana Revised Statutes 13:4448, advising that the constitutionality of Louisiana Revised Statutes 14:95.1 had been challenged in this appeal. The Attorney General filed a brief.

      .Due process requires an affirmative showing that a defendant who pleads guilty to a criminal charge has been apprised of his constitutional rights and has knowingly and voluntarily waived those rights. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). To insure an adequate record on review, a trial court would be best advised to conduct an on the record examination of the defendant, which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged, and the permissible range of sentences. State v. Shelton, 621 So.2d 769, 771 (La.1993).

      . Prior to the 2012 amendment, Article I, Section 11 stated: "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”

      . On April 9, 2012, the constitutional amendment was debated in the Louisiana Senate. During the debate, Senator Dan Claitor asked Senator Niel Riser, the amendment's sponsor, to explain the amendment. Senator Riser clearly stated that in proposing the amendment, the legislature intended to change the existing law by heightening the standard of review for any restriction of the right to bear arms from a rational basis review, to a strict scrutiny review, requiring a compelling government interest. According to Senator Riser, the puipose of the amendment is to make the article "more in line with the Second Amendment,” giving Louisiana “the strongest Second Amendment law in the nation.” Regarding the existing gun laws, Senator Riser further stated, "You need to be real clear that this defines ... how laws are judged. So [we] roughly have close to forty gun laws right now. And those gun laws will stay in effect.” Louisiana 2012 Reg. Session Senate Floor Debate, Committee Debate on Bill 303, http://senate.la.gov/sessioninfo/Archives/2012/ rs.htm at 1:58 to 2:21.

      . Following its approval by voters on the November 6, 2012 statewide ballot, the amendment became a part of the state constitution on December 10, 2012. See La. Const, art. XIII, § 1(C). No language in Louisiana Constitution article I, section 11 indicates the legislature purported to make the legislation retroactive. The general rule in Louisiana, both constitutional and statutory, is that laws have prospective effect only, unless a contrary intention is clearly expressed therein. State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382, 392-93; see also La. Civ.Code art. 6; La. ELS. 1:2. However, in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), the Supreme Court held "that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” The Louisiana Supreme Court has endorsed Griffith as a matter of state law for review of non-final convictions still subject to direct appellate review. Draughter, 130 So.3d at 864 at *7 (citing State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1296 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993)).

      . Because strict scrutiny is the highest level of review on this issue, it is not necessary to review the statute under the U.S. Constitution. Reinhardt v. Reinhardt, 97-1889 (La.App. 1 Cir. 9/25/98), 720 So.2d 78, 79 n. 2, writ denied, 98-2697 (La.12/18/98), 734 So.2d 635, cert. denied, 526 U.S. 1114, 119 S.Ct. 1761, 143 L.Ed.2d 792 (1999).

      . As in Draughter, the defendant herein does not have standing to raise the larger question, previously addressed by the Court in Amos— whether the State may dispossess certain convicted felons of their right to bear arms for a number of years, even after they have paid their debt to society and fully discharged their sentences. Draughter, 130 So.3d at 866 at *8; see also State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1332 (a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the court).


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge. WICKER, J., MURPHY, J.,

license: Public Domain

text:
    Rommel MLADENOFF v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al.
    No. 13-CA-477.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 26, 2014.

      Todd J. Bialous, Attorney At Law, Orleans, LA, Counsel for Plaintiff/Appellant.
    Deborah I. Schroeder, Attorney At Law, Batiza, Godofsky & Schroeder One Galleria, Metairie, LA, Counsel for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2In this medical malpractice case, plaintiff, Rommel Mladenoff, appeals the trial court’s judgment, rendered in accordance with the jury’s verdict, finding that plaintiff failed to establish the applicable standard of care by a preponderance of the evidence and dismissing plaintiffs case against defendants. For the following reasons, we vacate the trial court’s judgment and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

At approximately 9:05 p.m. on June 22, 2007, Rommel Mladenoff, a 34-year-old male, presented to the emergency room at East Jefferson General Hospital complaining of right side lower abdominal pain for the previous three days, as well as nausea, vomiting, and diarrhea. The emergency room physician diagnosed acute appendicitis, and the diagnosis was confirmed by a CT scan. Dr. Henry Pretus, the on-call surgeon, was consulted via telephone. Dr. Pretus confirmed the | .-¡diagnosis of appendicitis at 1:00 a.m. on June 23, 2007, and he ordered that Mr. Mladenoff be admitted to the hospital for an open appendectomy.

Dr. Pretus, who lived in Baton Rouge, arrived at the hospital at approximately 4:00 a.m. and evaluated Mr. Mladenoff. Mr. Mladenoff executed consent forms for the appendectomy procedure at 4:30 a.m. However, Mr. Mladenoff was not taken to surgery until just after 2:00 p.m. on June 23, 2007.

During the surgical procedure, Dr. Pre-tus observed that Mr. Mladenoffs appendix had ruptured, causing fecal content to spill into his abdomen. His abdominal cavity was cleaned and drains were placed in an effort to avoid infection. Nevertheless, Mr. Mladenoff developed a severe infection and abdominal abscesses, requiring continued care. He also developed secondary complications including pulmonary emboli in his lungs, which required further treatment and monitoring. Mr. Mladenoff was discharged on August 13, 2007, but he continued with home wound care, and he claims that he still suffers from the injuries he sustained due to the rupture of his appendix.

A medical review panel was convened at Mr. Mladenoffs request, and in its opinion dated September 8, 2010, the panel concluded that Dr. Pretus failed to comply with the appropriate standard of care due to the 13-hour delay between the diagnosis of an acute appendicitis and the commencement of surgery. The medical review panel also stated that it was unable to answer the questions of causation and damages, finding that Mr. Mladenoffs appendix had likely ruptured prior to his arrival at the hospital and noting Mr. Mla-denoffs delay in seeking hospital attention after being informed of his suspected appendicitis.

On January 6, 2011, Mr. Mladenoff filed this lawsuit against Dr. Pretus, his professional liability insurer, Louisiana Medical Mutual Insurance Company (“LAMMICO”), and Henry R. Pretus, M.D., Ph.D., APMC, as Dr. Pretus’ |4employer. In his petition, Mr. Mladenoff asserts that Dr. Pretus was negligent and breached the standard of care by allowing a 13-hour delay between the diagnosis of appendicitis and the commencement of surgery, resulting in the rupture of his appendix, a severe infection, and further complications.

A jury trial began on February 19, 2013, and concluded on February 22, 2013, with a verdict rendered in favor of defendants, Dr. Pretus, LAMMICO, and Henry R. Pretus, M.D., Ph.D., APMC. The first question on the jury interrogatory form asked if plaintiff “established by a preponderance of the evidence the standard of care applicable to this case.” The jury replied, “No.” Thus, no further questions on the jury interrogatory form were reached, such as breach or causation. On March 4, 2013, the trial judge rendered a judgment in accordance with the jury’s verdict, dismissing Mr. Mladenoffs claims against defendants with prejudice. Mr. Mladenoff appeals.

LAW AND DISCUSSION

On appeal, Mr. Mladenoff contends that the jury was manifestly erroneous in finding that he did not prove the applicable standard of care by a preponderance of the evidence. He asserts that he presented competent expert testimony of the applicable standard of care at trial and that no competent evidence was offered to challenge the standard of care proven by plaintiff in this matter. Defendants respond that the jury correctly found that plaintiff did not establish the appropriate standard of care. They claim that plaintiffs proposed standard of care, “as soon as possible,” is merely a platitude, which is a general statement that has no meaning.

A jury’s finding of fact may not be set aside unless it is manifestly erroneous or clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990); Jackson v. Tulane Medical Center Hosp. and Clinic, 05-1594, p. 5 (La.10/17/06), 942 So.2d 509, 512. In order to reverse a jury’s determination of fact, |san appellate court must review the record in its entirety and find that: 1) a reasonable factual basis does not exist for the jury’s finding; and 2) the record establishes that the fact finder is clearly wrong. Stobart v. State, through Department of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The manifest error rule applies in appeals of medical malpractice actions. Sumter v. West Jefferson Medical Center, 02-1103, p. 4 (La.App. 5 Cir. 4/29/03), 845 So.2d 1179, 1181, writ denied, 03-1484 (La.9/26/03), 854 So.2d 367; Rebstock v. Hospital Service Dist. No. 1, 01-659, p. 4 (La.App. 5 Cir. 11/27/01), 800 So.2d 435, 437, writ denied, 02-0077 (La.3/15/02), 811 So.2d 914.

LSA-R.S. 9:2794(A) provides that in order to establish a medical malpractice claim, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar- circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Thus, the plaintiff must establish by a preponderance of the evidence the defendant’s standard of care, a violation by the defendant of that standard of care, and a causal connection between the defendant’s breach of the standard of care and the plaintiffs injuries. Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228, 1233; Newsom v. Lake Charles Memorial Hosp., 06-1468, p. 3 (La.App. 3 Cir. 4/4/07), 954 So.2d 380, 384, writ denied, 07-0903 (La.6/15/07), 958 So.2d 1198; Marroy v. Hertzak, 11-0403, p. 5 (La.App. 1 Cir. 9/14/11), 77 So.3d 307, 311.

In the present case, plaintiff presented the testimony of Dr. Michael Leitman, a board-certified general surgeon with added qualifications in surgical critical care. Dr. Leitman testified that when a patient presents with appendicitis and the decision is made to treat with surgery, the surgery should be carried out “as soon as possible.” He stated that “as soon as possible” to him means as soon as a surgeon can get an operating room, anesthesia team, and nursing team together to care for the patient properly. Dr. Leitman opined that in most large hospitals, a surgical team can be assembled and an appendectomy procedure can commence within a few hours. He further testified that a delay in taking the patient to surgery means that the surgeon is risking the safety of the patient. He also referred to the standard of care for general surgeons treating appendicitis as “decision to incision without delay.”

Plaintiff also presented the testimony of Dr. Julius Levy, who was a member of the medical review panel and a board-certified general surgeon. Dr. Levy practiced general surgery for about 50 years in the New Orleans area, and he has treated appendicitis on numerous occasions during his career. Dr. Levy testified that the standard of care in the case of appendicitis is to perform the operation “as soon as is reasonably possible” once the decision to operate has been made. He stated that appendicitis is not an emergency that requires surgery immediately after the patient arrives at the hospital, but it is an operation that should certainly be done without undue delay. Dr. Levy opined that waiting over 13 hours to begin surgery after a diagnosis of appendicitis was a breach of the standard of care.

17At trial, even Dr. Pretus, defendant herein, agreed that once the decision is made to treat appendicitis surgically, it should be performed “as soon as possible” and “without delay.” He testified that he requested that plaintiffs surgery commence “as soon as possible,” which meant to him that surgery would proceed as soon as an operating team, anesthesiology team, and operating room were available. Dr. Pretus testified that there is no defined time to commence an appendectomy once the decision is made to operate, but his training has taught him that it should be performed “as soon as possible.”

Defendants’ expert in general surgery, Dr. Yi-Zarn Wang, testified regarding other methods of treatment for appendicitis as alternatives to surgery, such as antibiotics. He stated that there is no consensus in the medical community on a time limit to perform an appendectomy. However, Dr. Yang admitted that doctors who believe that appendicitis should be treated with surgery try to perform the surgery “as soon as possible.” He also testified that based on his experience and the medical literature, he did not agree with the opinion of the medical review panel that Dr. Pretus breached the standard of care.

The record contains ample evidence presented at trial regarding the applicable standard of care. Dr. Leitman indicated that the standard of care is “as soon as possible” or “decision to incision without delay,” which basically have the same meaning. Dr. Levy testified that after a diagnosis of appendicitis, surgery should be performed “as soon as is reasonably possible.” Even Dr. Pretus agreed that surgery should be performed “without delay’ or “as soon as possible” after a diagnosis of appendicitis. Finally, while Dr. Wang prefers some non-surgical methods of treatment for appendicitis, he admitted that doctors who typically treat appendicitis with surgery try to do so “as soon as possible.” Although none of the experts stated a specific amount of time within which surgery should be performed, they generally |sagreed that it should be done “as soon as possible” which requires consideration of the particular circumstances of each case.

After thorough examination of the entire record and considering the applicable law, we find that sufficient evidence was presented to the jury to establish the standard of care owed by Dr. Pretus to Mr. Mladenoff. A reasonable factual basis does not exist to support the jury’s finding that Mr. Mladenoff did not prove the applicable standard of care by a preponderance of the evidence; therefore, the jury’s finding was clearly wrong. Accordingly, we vacate the jury’s verdict and the trial court’s judgment rendered in accordance with the verdict.

Generally, when a jury verdict is reversed due to a material error but an otherwise complete trial record exists, an appellate court should, if it can, render judgment on the record. Jones v. Black, 95-2530 (La.6/28/96), 676 So.2d 1067; Gonzales v. Xerox, 254 La. 182, 320 So.2d 163, 165 (1975). However, when a view of the witnesses is essential to a fair resolution of conflicting evidence, the appellate court should remand to the trial court for a new trial. Jones, supra.

In the instant case, after a thorough review of the entire record, we find that this case is one in which a view of the witnesses is essential to a fair resolution of the evidence and issues. Accordingly, we remand the case to the trial court for a new trial.

DECREE

For the foregoing reasons, we vacate the trial court’s judgment dismissing plaintiffs claims against defendants, and we remand the case for a new trial on the merits.

JUDGMENT VACATED; REMANDED.

WICKER, J., Concurring in Part, and Dissenting in Part, With Reasons.

MURPHY, J., Dissents With Reasons.

WICKER, J.,

Concurring in Part, and Dissenting in Part, With Reasons.

|,I agree with the majority’s analysis and finding that a reasonable basis does not exist to support the jury’s finding that the plaintiff failed to establish the applicable standard of care by a preponderance of the evidence. However, I respectfully disagree with the majority’s decision to remand this case for a new trial.

Generally, if the appellate court makes a finding that the trial court was manifestly erroneous or that there is a legal error, and the record is otherwise complete, the appellate court should render judgment on the record. LeBlanc v. Allstate Ins. Co., 00-1128 (La.App. 5 Cir. 11/28/00), 772 So.2d 400, 403, writ denied, 00-3522 (La.2/9/01), 785 So.2d 831. In such cases, the appellate court is not subject to the manifest error rule, but decides the case de novo. Id.

In my opinion, this Court should, based upon the complete record, analyze the evidence and render a judgment.

MURPHY, J.,

Dissents with reasons.

|,The majority reverses the trial court’s judgment and jury’s factual finding that the plaintiff failed to establish the standard of care by a preponderance of the evidence. In support of that position, the majority relies on the expert testimony of Drs. Leitman and Levy as if there were no impeachment testimony on which the jury could have relied and as if the jury could not properly have accepted the testimony of defense expert Dr. Wang. I find that the jury was not manifestly wrong in relying on the testimony impeaching plaintiffs experts.

The Supreme Court’s holding in Rosell v. ESCO, 549 So.2d 840 (La.1989) is controlling here. “[Wjhere 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.” Id. at 844.

Despite plaintiffs protestations to the contrary, La. R.S. 9:2794(A) requires that plaintiff establish the standard of care by a preponderance of the evidence in this medical malpractice action. Plaintiff argues in his brief against this essential element:

... [T]he jury found that the Petitioner failed to establish the standard of care applicable to the case, resulting in a verdict in favor of Defendant. By doing so, the jury never reached the actual issues in dispute between the parties, whether Dr. Pretus breached that standard of care and the breach’s resulting impact on the patient. (Emphasis added).

|2The Legislature squarely placed the burden of interrogatory one, establishing the standard of care, on the plaintiff.

The conflicting expert testimony amply supports the jury’s finding as reasonable and certainly not manifestly erroneous so as to justify a reversal of the judgment of the trial court.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Plaintiff-Respondent v. Jesse M. GRIFFIN, II, Defendant-Applicant.
    No. 48,580-KW.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.

      A. Shawn Alford, Farmerville, for Applicant.
    Robert W. Levy, District Attorney, for Respondent State of Louisiana.
    Hugo A. Holland, Jr., Kristi Garcia, Spi-nosa, Assistant District Attorneys, Usry, Weeks & Matthews, By: Craig E. Frosch, for Respondent Robert G. Buckley, Sheriff.
    Kristi G. Spinosa, for Louisiana District Attorneys Assoc.
    Before BROWN, WILLIAMS, and PITMAN, JJ.
   BROWN, Chief Judge.

| ,011 July 12, 2011, at about 12:22 a.m., while driving in Union Parish, defendant, Jesse M. Griffin, II, was stopped and thereafter arrested by Union Parish deputies. A bill of information charged defendant with driving while intoxicated, first offense, as defined by La. R.S. 14:98. On September 12, 2012, defendant pled guilty, and his sentence was reduced to writing. Defendant was ordered to “pay a fine of $600 and all costs of these proceedings,” and to serve 150 days in the parish jail. The jail sentence was suspended, and defendant was placed on supervised probation for one year subject to certain conditions which included the payment of the $600 fine, costs of court, $100 costs of prosecution (“COP”) payable directly to the district attorney’s office, and $100 costs of investigation (“COI”) payable to the Union Parish sheriffs office. Although objecting to the COP and COI, defendant signed the written sentence, certifying that he had read and understood and agreed to abide by the conditions of probation. Defendant paid both the COP and COI, as well as the $600 fine and $597 court costs. Thereafter, defendant filed a motion to reconsider the sentence in which he objected to the imposition of the COP and COL This motion was denied. Defendant sought supervisory review, and this court granted the writ to docket.

DISCUSSION

This case presents various issues regarding the application and interpretation of La. C. Cr. P. arts. 887(A) and 895.1(B)(3). La. C. Cr. P. art. 887(A) provides that a convicted defendant is “liable for all costs of the [aprosecution or proceeding,” and that “such costs are recoverable by the party or parties who incurred the expense.” La. C. Cr. P. art. 895.1(B)(3) provides that as a condition of probation, the court may order the defendant to pay an amount of money to “the sheriff ... for costs incurred.”

Citing State v. Rideau, 05-1470 (La.App. 3d Cir.11/02/06), 943 So.2d 559, writ denied, 06-2805 (La.09/14/07), 963 So.2d 395, defendant argues that the COP and COI are costs associated with traditional government functions, which defendants cannot be required to pay. Defense counsel further asserts that the COP and COI are neither itemized nor specific to defendant’s criminal prosecution, but apply to all misdemeanors, even in minor traffic cases, in which the defendant enters a guilty plea, which requires no further investigative work or trial preparation. In many of these cases the court costs greatly exceed the fine imposed. Moreover, defendant contends that the imposition of COP supplements the district attorney’s discretionary fund and salary, resulting in a personal interest in the charges and a subsequent need for his recusal.

Both the district attorney and sheriff claim that the objections to the assessment of COP and COI were waived because defendant paid these costs before filing his motion to reconsider the sentence. Even so, the district attorney states that assessment of COP is authorized by La. C. Cr. P. art. 887(A) and applicable jurisprudence. Additionally, $100 for COP is reasonable and supported by an omnibus “Motion for Costs of Prosecution” filed by the district attorney on October 8, 2004. In this omnibus motion, |sthe district attorney requested that each misdemeanor defendant be ordered to pay at least $100 for each count to the district attorney’s office as COP. This omnibus motion contained a list of tasks that the district attorney’s office allegedly performs in connection with the prosecution of every misdemeanor. No order was signed by the court pursuant to this motion; however, such costs were specifically ordered in defendant’s case.

The sheriff argues that the COI are authorized under La. C. Cr. P. art. 895.1(B)(3) and/or La. R.S. 13:5535, which establish the costs that sheriffs are allowed to collect in criminal proceedings, and that the judges of the Third Judicial District Court established a schedule of costs by order dated May 8,2006, as follows:

Considering this Court has conferred with the Sheriff of Union Parish and has determined that a fee of $100.00 would be fair and reasonable in line with cost incurred in any misdemeanor case sentenced.
THEREFORE, IT IS ORDERED that the Sheriff of Union Parish be and is hereby allowed to collect the sum of $100.00 for each misdemeanor case sentenced by the court.

The trial court determined that in the instant case, $100 for COP was fair, reasonable, not excessive, and was awarded in accordance with the |4schedule contained in the omnibus motion. The trial court determined that the $100 to be paid to the sheriff was also fair, reasonable, not excessive, and was in accordance with the May 8, 2006, order.

La. R.S. 13:62(B), provides in part that:

No law to provide for a new court cost or fee or to increase an existing court cost or fee shall be enacted unless first submitted to the Judicial Council for review and recommendation to the legislature as to whether the court cost or fee is reasonably related to the operation of the courts or court system.

In criminal cases liability for costs arises from statutory enactments. The costs which are properly chargeable are those necessarily incurred in the prosecution of a particular person, and further, such costs must bear a true relation to the actual expenses of the prosecution. In Safety Net for Abused Persons v. Segura, 96-1978 (La.04/08/97), 692 So.2d 1038, 1044, the supreme court found that the additional fee imposed on all criminal defendants by La. R.S. 13:1906 was unconstitutional because its purpose was unrelated to the administration of justice in that:

... It is not a charge intended to defray the costs of the prosecution of the particular defendant against whom the fee is assessed. Neither does the fee bear a relationship to a social problem caused by a specific crime to which the fee is attached. Rather, the three dollar fee is charged against all persons against whom a fine or costs are assessed, regardless of the crime or the particular costs of the prosecution.

Recusal

The opportunity to receive proceeds from a forfeiture does not demonstrate a bias that would cause a recusal. State v. Ennis, 03-1491 (La.App. 3d Cir.07/07/04), 877 So.2d 300. Furthermore, in order to have a district attorney recused, a motion to recuse must be filed, and the movant must establish by a preponderance of the evidence that the district attorney |shas a personal interest in the cause or proceeding which is in conflict with the fair and impartial administration of justice. La. C. Cr. P. art. 680; State v. King, 06-2383 (La.04/27/07), 956 So.2d 562.

Waiver

We first note that, contrary to the arguments of the district attorney and sheriff, defendant did not acquiesce in the trial court’s judgment by paying the COP and COI. At sentencing, defense counsel specifically objected to the imposition of both COP and COI. This objection forms the basis for defendant’s appeal. Under these circumstances, the payment was involuntary and indicated an intent by defendant to retain his right to appellate review. State v. Malone, 08-2253 (La.12/01/09), 25 So.3d 113.

Costs of Prosecution

La. C. Cr. P. Article 887(A) provides in part:

A defendant who is convicted of an offense or is the person owing a duty of support in a support proceeding shall be liable for all costs of the prosecution or proceeding, whether or not costs are assessed by the court, and such costs are recoverable by the party or parties who incurred the expense. However, such defendant or person shall not be liable for costs if acquitted or if the prosecution or proceeding is dismissed. In addition, any judge of a district court, parish court, city court, traffic court, juvenile court, family court, or magistrate of a mayor’s court within the state shall be authorized to suspend court costs.

In State v. Lopes, 01-1383 (La.12/07/01), 805 So.2d 124, 129, the supreme court stated, “[C. Cr. P. Art. 887] continues the well-settled declaration that the defendant’s liability for costs of his criminal prosecution and the proceedings related thereto is inherent in the adjudication of his guilt. As such, should the defendant be convicted, the costs for any necessary foreign language interpreter is assessable to him as a cost ‘of the | (¡prosecution or proceeding’ against him.” In State v. Lopes, supra, the court recognized that these costs initially “shall be paid by the parish where the prosecution was instituted.” Id. Article 887(A) provides that “[S]uch costs [of prosecution] are recoverable by the party or parties who incurred the expense.” Thus, in State v. Lopes, the defendant would have reimbursed the costs of the interpreter to the parish, not the district attorney’s office.

Significantly, La. R.S. 16:16.1 is titled “Costs for prosecution expenses ” and provides for a specific sum to be paid to the district attorney’s office as follows:

Except in the parish of Orleans, in all criminal cases, over which the district attorney’s office has jurisdiction, there shall be taxed as costs against every defendant who is convicted after trial or who pleads guilty or nolo contendere or against whom a judgment of bond forfeiture has been rendered, a nonrefundable sum of ten dollars in each case, which shall be in addition to all other fines, costs, or forfeitures lawfully imposed. The sums collected under this Section shall be remitted monthly by the clerk’s office to the office of the district attorney of the judicial district to be used in defraying expenses of his office.

In State v. Heath, 513 So.2d 493, (La.App. 2d Cir.1987), writ denied, 519 So.2d 141 (La.1988), this court found that the trial court did not abuse its discretion in assessing $3,865.47 for prosecution costs in connection with the defendant’s conviction for four counts of Medicaid fraud. This court noted in fn. 6, at 513 So.2d at 503, “We gather from discussions in the record that the state presented documentation to support the costs claim, but that documentation was not attached to the record. Apparently, the trial judge only allowed costs attendant to the trial itself, as 17opposed to those arising from the investigation of the case.” The court, in State v. Heath, supra, however, did not designate the party who incurred the expense. Article 887(A) provides that such costs (of prosecution) are recoverable by the party or parties who incurred the expense.

In State v. Ratliff, 35,144 (La.App. 2d Cir.09/26/01), 796 So.2d 101, the defendant was assessed $2,500 for the COP to be paid to the district attorney’s office, in addition to a fine and court costs, in connection with his conviction for conspiracy to possess a Schedule IV CDS with intent to distribute. On appeal, in finding that the defendant’s sentence was not excessive, this court observed that the award for $2,500 in additional costs was supported by the documentation supplied in the defendant’s pre-sentence investigation report. We note that the opinion itself gives some basis for the costs awarded to the prosecutor in State v. Ratliff Following a traffic stop on 1-20, a search of the van driven by Roberto Hernandez turned up seven large Ziploc bags filled with approximately 64,000 blue pills which appeared to be diazepam or Valium. Hernandez agreed to cooperate with investigators in the delivery of the drugs to the defendant, the intended purchaser, who was in Indiana. Three state troopers, a federal agent, Hernandez, and his girlfriend traveled to Indiana in several vehicles. A buy-bust sting operation was conducted in conjunction with Indiana authorities. Audio and video surveillance equipment captured the transaction, and defendant was arrested. Defendant was tried in Louisiana. It can rationally be inferred that the costs awarded to the prosecutor were for this buy-bust operation. In the opinion, this court recognized that the costs would be paid to the party or parties that incurred the expense.

| sIn State v. Rideau, supra, the court stated that the phrase “costs of prosecution or proceeding” in La. C. Cr. P. art. 887(A) did not express an intent by the legislature to authorize the recoupment of every cost incurred by the state in maintaining the judicial system. The court noted that La. C. Cr. P. art. 887(A) did not explicitly authorize costs related to jury expenses, which have been held by other courts to be costs inherent in the judicial process and as such, cannot be assessed against a defendant. The court stated that if La. C. Cr. P. art. 887(A) were interpreted as “all inclusive” of all prosecution costs, the potential for varied judicial interpretations of what costs fall within its parameters is evident and that a court could find that the COP included:

not only those [costs] associated with juries, but a laundry list of other costs from the date of arrest or citation to sentencing-i.e., security costs for judges, salaries of the sheriff, municipal police, or marshals and their deputies, transportation and incarceration costs, salaries of the clerk of court and his employees, in addition to record keeping and duplication costs, salaries of the judges, their law clerks, secretaries, and other court employees, including court reporters salaries and fees, salaries of the district attorney and his staff, and all their daily expenses while working on the “prosecution of the case” including the meals they consumed, the costs of traveling to and from their place of employment, all investigation expenses, forensic testing, all lay and expert witness costs and fees, in whatever amounts claimed, or any other costs the district attorney or other officials claim are related to the prosecution.

State v. Rideau, 943 So.2d at 574.

The court in State v. Rideau, supra, noted that costs are subject to the discretion of the trial judge, and that La. C. Cr. P. art. 887(A) does not provide any standards for a court to consider before assessing costs against a defendant. The court observed that there was nothing in the record to aid it in determining whether the costs, as itemized, accurately reflected the ^charges that were actually incurred in the prosecution and whether those costs were reasonable.

In this case, as a condition of his probation, the trial court ordered defendant to pay $100 for COP to the district attorney’s office, in addition to a fine and court costs. As noted, the district attorney already receives as a cost of prosecution $10 in every criminal case. See La. R.S. 16.16.1. There is no proof of any extraordinary costs to the district attorney that were actually incurred in connection with this case. There is an omnibus motion in which the district attorney requested that each misdemeanor defendant be ordered to pay the district attorney’s office $100 for COP. The omnibus motion lists tasks that the district attorney’s office ordinarily performs in all misdemeanor cases; however, the costs associated with those tasks appear to be general operating expenses and do not represent any special costs that the district attorney’s office incurs in prosecuting individual defendants. Also, because defendant pled guilty, the district attorney’s office did not actually perform most of the tasks listed in the motion.

Further, La. R.S. 15:571.11, entitled “Disposition of fines and forfeitures,” provides in part that:

A. (1)(a) All fines and forfeitures ... upon collection by the sheriff or executive officer of the court, shall be paid into the treasury of the parish in which the court is situated and deposited in a special “Criminal Court Fund” account, which, on motion by the district attorney and approval order of the district judge, may be used or paid out in defraying the expenses of the criminal courts of the parish as provided in Ch.C. Articles 419 and 421 and R.S. 16:6, in defraying the expenses of those courts in recording and transcribing of testimony, statements, charges, and other proceedings in the trial of indigent persons charged with the commission of felonies, in defraying their expenses in the preparation of records in appeals in such cases, for all expenses and fees of the petit jury and grand jury, for witness fees, for attendance fees of the sheriff and clerk of court, for costs and expenses of a parish [inlaw library, and for other expenses related to the judges of the criminal courts and the office of the district attorney ...

Thus, all ordinary expenses of the district attorney’s office are covered by the parish police jury. The “party” that incurs these costs is the parish police jury’s criminal court fund or its general fund if the criminal court fund is short of money. Other expenses incurred by the district attorney’s office and provided for under article 887(A) must bear a “true relation” to the actual expenses of the particular prosecution, and they do not include the general expense of maintaining the system of courts and the administration of justice, all of which is an ordinary burden of parish government.

Costs of Investigation

Defendant contends that the “investigation costs” ordered to be paid to the sheriff under La. C. Cr. P. art. 895.1 are the same “expenses” set forth in La. C. Cr. P. art. 887 and are not intended as additional pay for doing one’s job, but are intended to serve as reimbursement for actual costs expended in each criminal prosecution. La. C. Cr. P. art. 895.1 provides only for the recoupment of expenses not associated with the ordinary operation of the sheriffs offices.

| iiLa. C. Cr. P. Article 895.1(B) provides in part:

When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(3) To the sheriff ... for costs incurred.

La. C. Cr. P. Article 877(C) provides in part, with emphasis added:

In addition to the costs provided in Paragraph A, a person convicted of a violation of R.S. 14:98, R.S. 14:98.1, or of any municipal or parochial ordinance defining the offense of operating a motor vehicle, aircraft, watercraft, vessel, or other motorized means of conveyance under the influence of alcohol or drugs, who was subjected to a blood, breath, or urine analysis for alcohol or any controlled dangerous substance listed in R.S. 40:964, Schedule I, II, III, IV, or V, shall be assessed an additional seventy-five dollars as special costs. Such costs shall be paid in the following manner: twenty-five dollars to the governing authority owning the instrument used to perform the analysis, and fifty dollars to the governing authority whose agency performed the analysis.

In the case sub judice, this $75 was in fact paid to the sheriffs office. The costs set forth in La. R.S. 13:5535 are paid to the sheriffs office by the parish police jury. Further, the sheriff is required to itemize these expenses.

Although the trial court has statutory authority to impose COP and costs incurred by the sheriff on a defendant, there are issues regarding what kinds of costs can be recovered under these articles and the extent of proof necessary to impose such costs on a defendant. We hold that these articles do not allow recovery for the ordinary operating expenses of the district attorney’s office or the sheriffs department. Rather, the district attorney and the sheriff can only receive reimbursement for costs that they actually “incurred” in connection with a particular case. As such, proof of these costs is necessary in order for the trial court to assess them to a particular defendant.

11⅞Conclusion

Thus, we vacate the trial court’s order that defendant pay the cost of prosecution and costs incurred by the sheriffs office and remand for further proceedings.

      . An amicus curiae brief was filed on behalf of the Louisiana District Attorneys’ Association in support of the respondent's opposition to the writ application.

      . Although the trial court and all parties refer to “costs of investigation,” La. C. Cr. P. art. 859.1(B)(3) simply states "for cost incurred.”

      . This list includes: building of the file by the secretary; preparing a request for the defendant’s criminal history and active charges; reviewing the file submitted by law enforcement to make sure it is complete; data entry of the defendant's information; reviewing the file to determine the appropriate charges; preparation of the bill of information; filing the bill of information; meetings with victims and witnesses of crimes and notifying them of court proceedings; issuance of subpoenas for medical records and phone records; attendance at the defendant's initial appearance; data entry of trial dates; attempts to locate witnesses, serve subpoenas, and execute arrest warrants; substantial copying of the file in response to the defendant’s motion for discovery; tracking the defendant's pre-trial motions; attendance at the status and pre-trial conferences; interviewing witnesses and victims; preparation and negotiation of the case termination agreement; attendance at the defendant’s guilty plea; and attendance at the trial of the case.

      . There is also an identical order stating that the sheriff is allowed to collect $300 for each felony case. In briefs, the parties state that the DA also collects $300 in felony cases.

      . We note that La. R.S. 13:1899 allows that the judge in all criminal matters may assessed an amount not to exceed $30 for the court’s expense account. Similar costs are imposed for public defenders, crime labs, sheriffs, probation and parole, and others.


author: STEWART, J.

text:
    Preston William FORD, Elissa Amaral Ford, and Gene Bartlett Haskins, Plaintiffs-Appellants v. Mary Elizabeth Gunning LESTER, Clyde Charlie Lester, Jr. and Chesapeake Louisiana, L.P., Defendants-Appellees.
    No. 48,932-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.
    Rehearing Denied June 19, 2014.

      The Pesnell Law Firm Counsel By: J. Whitley Pesnell, for Appellants Preston William Ford, Elissa Amaral Ford, Gene Bartlett Haskins and Andrea Lynn Ford Braniff.
    Jones Walker, Baton Rouge, By: Michael B. Donald, Nicole Duarte, Krystal P. Scott, for Appellees Chesapeake Louisiana, L.P. PXP Louisiana, L.L.C. and Larch-mont Resources, L.L.P.
    Kevin W. Hammond, for Appellees Mary Elizabeth Gunning Lester and Clyde Charlie Lester, Jr.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   STEWART, J.

LAt issue in this appeal is the ownership of mineral rights underlying two 20.2-acre tracts of land (“the disputed property”) in Caddo Parish. After a bench trial, the trial court denied the claims of the plaintiffs, who are the surface owners of the disputed property and who sought, along with other relief, to be declared owners of the mineral rights underlying their land. The plaintiffs now appeal. For the reasons set forth in this opinion, we affirm the trial court’s judgment.

FACTS

Plaintiffs Gene Bartlett Haskins (“Has-kins”) and spouses Preston William Ford and Elissa Amaral Ford (“the Fords”) filed suit on July 21, 2010, against spouses Clyde Lester and Mary Elizabeth Gunning Lester (“the Lesters”), along with Chesapeake Louisiana, L.P. (“Chesapeake”), for declaratory and injunctive relief plus damages. Later, the plaintiffs amended their petition to add PXP Louisiana, LLC, and Larchmont Resources, LLC, as defendants; both are assignees of Chesapeake. Plaintiffs also added Andrea Lynn Ford Braniff (“Braniff’) as a plaintiff; Braniff is the Fords’ daughter to whom they donated all their rights, title, and interest in one acre, more or less, of their land. References to the Fords’ claims will encompass Braniff s claims concerning the acre donated to her by her parents.

The Fords and Haskins each purchased 20.2 acres of land from the Lesters’ ancestors-in-title on April 19, 1977, in separate credit sale deeds. The gist of the plaintiffs’ 26-page petition is their claim to be declared owners of the mineral rights to the disputed property and to 12have certain mineral leases, particularly leases executed in June 2008 by the Lesters in favor of Chesapeake, to be reformed to reflect that they do not cover the disputed property. The plaintiffs claim that they obtained ownership of the mineral rights from the defendants ancestors-in-title by execution of the credit sale deeds and by accrual of the 10-year prescription of nonuse on April 19,1987.

The brief testimony adduced during the bench trial along with the 109 exhibits introduced into evidence by the parties established the relevant facts for determination of who owns the mineral rights at issue. In 1935, the Lesters’ ancestor-in-title, Elbert Moncrief (“Elbert”), purchased the following described property:

All of the North 1212 Feet of the Northeast Quarter (NE ⅜) of Section thirty four (34), containing 73.65 acres and all that part of the North 1212 Feet of the Northwest Quarter (NW ⅜) of Northwest Quarter (NW ⅝) of Section thirty five (35), lying westerly from the center line of the Greenwood Bethany Paved Road, containing 12.51 acres, all in Township Seventeen (17) North, Range Sixteen West (16W), Caddo Parish, Louisiana[.]

At the time of the purchase, Elbert was married to Marie Burrow Moncrief (“Marie”), so the property was them community property. Elbert entered a mineral lease covering the property on March 23, 1953. By February 13, 1956, the TP SUK Minor Unit No. 1 Well, which covers a 640-acre production unit that includes the property purchased by Elbert, began producing and continues to do so today. The well was drilled to a depth of 9,059 feet.

| aAfter Elbert’s death on January 14, 1965, his will was probated and a judgment of possession was signed on March 23, 1965. The judgment of possession recognized Marie’s ownership of an undivided one-half interest in all the community property. As to Elbert’s half of the community property, Marie, as a legatee, was sent into possession of one-half of Elbert’s community property and granted a usu-fruct over the remainder. Burette Mon-crief Gunning (“Burette”) and George Elbert Moncrief (“George”), the children of Elbert and Marie, were sent into possession of an undivided one-fourth interest in the property of the deceased, subject to the usufruct in favor of Marie. In summation, Marie owned three-fourths of the former community property, while Burette and George had the naked ownership of the remaining undivided one-fourth of the property, subject to Marie’s usufruct.

On February 12, 1970, Marie executed a donation (hereafter “the 1970 donation”) involving two dispositions. First, Marie donated to George and Burette in equal portions “[a]ll of her right, title and interest” in land in “Sections 26, 27, 34 and 35, Township 17 North, Range 16 West” in Caddo Parish. Second, Marie donated a separate smaller tract to George. Following the two dispositions, the act of donation states:

Grantor reserves unto herself all of the oil, gas and other minerals in and under said property during the remainder of her life, together with all income from minerals from said property.
Grantor further reserves the right to live in the home last above described during the remainder of her life without payment of any rent on same.

|4The donation was an authentic act signed by Marie as grantor and by George and Burette as grantees before a notary public and two witnesses.

Eight months later, on October 10,1970, Marie, George, and Burette executed another authentic act relative to the donation. This instrument, which we will refer to as the “clarification instrument,” states in relevant part:

Whereas, by instrument dated February 12, 1970, Marie Burrow Moncrief executed a donation to her son, George Elbert Moncrief, and her daughter, Bu-rette Moncrief Gunning of certain properties, which instrument is recorded in the Records of Caddo Parish, Louisiana, under Instrument No. 499,960, and,
WHEREAS, it was the intention of all parties that Marie
Burrow Moncrief did reserve all usu-fruct of income from the property during the remainder of her life,
NOW, THEREFORE, the parties do agree as follows:
That all income from minerals, timber, rights of way and any and all other income from said property is hereby the property of Marie Burrow Moncrief, and always has been her property during the remainder of her life.

Then on January 12, 1971, Marie and George executed another authentic act designated as a “Correction of Donation,” (hereafter “the correction instrument”) to correct the description of the property donated to George individually in the 1970 donation. After the corrected property description, the instrument states:

Grantor reserves unto herself the usu-fruct of all income from said property, including all income from minerals during the remainder of her life, together with the right to live in said property without payment of any rent.

|sOn April 19,1977, George, Burette, and Marie, in two separate but substantially identical acts, sold the disputed property to the Fords and Haskins. Both credit sale deeds list George and Burette as vendors along with Marie, who is described as

“joining herein for the purpose of conveying all of her right, title and interest in and to the property, together with all reservations of minerals, income rights, timber rights, all rights of usufruct and habitation and all other rights in and to the below described property.”

The deeds also contain the following reservation:

George Elbert Moncrief and Burette Moncrief Gunning reserve all of the oil and gas, but not coal, lignite or shale; George Elbert Moncrief and Burette Moncrief Gunning stipulate that any income or revenue from the oil and gas rights shall be paid to Mrs. Marie Burrow Moncrief so long as she lives.

Marie died two years later. By the judgment of possession rendered in her succession on April 17, 1979, George and Burette were placed in possession of an undivided one-half interest each of all Marie’s property. Other exhibits in evidence establish the familial chain of title by which the Lesters claim ownership of the mineral rights at issue.

Both sides sought to present expert testimony from attorneys to assist the court in interpreting the donations and conveyances pertinent to a determination of ownership of the mineral rights in the | (¡disputed property. Over objections by the plaintiffs, the trial court allowed the testimony of the defendants expert, Louis Linton Morgan (“Morgan”). The trial court believed it was required to accept Morgan as an expert because he had previously testified as an expert in other courts. However, the trial court refused to accept the plaintiffs’ expert, Philip E. Downer, III (“Downer”). The trial court appeared to agree with the defendants that Downer, who was not practicing law when the relevant documents were drafted, lacked specialized knowledge of the customs and practices during that period. The plaintiffs proffered Downer’s testimony.

The dispute over the expert testimony was rendered a nonissue by the trial court’s reasons for judgment, which state that the trial judge did not base its findings on any parole evidence adduced at trial. Instead, the trial court based its ruling on the unambiguous authentic acts and succession judgments entered into evidence. The trial court found that the credit sale deeds (Exhibits 17 and 18) considered in light of the donation (Exhibit 13), the clarification instrument (Exhibit 15), and the correction instrument (Exhibit 16) failed to establish the plaintiffs’ ownership of the mineral rights underlying the disputed property. The trial court further found that the documentary evidence established the Lester defendants’ ownership rights. The trial court signed a final judgment on April 5, 2013, denying and dismissing the claims of the plaintiffs and assessing them with all costs. The |7plaintiffs’ appeal followed. They present three assignments of error for review.

DISCUSSION

Standard of Review

A trial court’s factual findings are entitled to great weight and will not be disturbed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, the interpretation of a contract generally presents a question of law that is subject to a de novo review on appeal. Mason v. Exco Operating Co., L.P., 48,713 (La.App.2d Cir.1/15/14), 132 So.3d 1004; Total Minatome Corp. v. Union Texas Products Corp., 33,433 (La.App.2d Cir.8/23/00), 766 So.2d 685. As stated, the trial court’s reasons for judgment indicate that it relied only on documentary evidence, not parol evidence, in reaching its judgment and that it found no ambiguity in the authentic acts and succession judgments entered into evidence. Therefore, we will conduct a de novo review of this matter.

First Assignment of Error

The plaintiffs assert that the trial court erred as a matter of law when it failed to find that they have owned all the mineral rights under the disputed property since April 19, 1987. In conjunction with this assignment of error, plaintiffs assert the following:

• the trial court failed to apply the open mines doctrine to determine the mineral interests held by Marie, George, | sand Burette by virtue of the judgment of possession rendered in Elbert’s succession;
• the trial court erred in finding that Marie did not convey all her mineral interests to the Fords and Haskins in the credit sale deeds;
• the trial court erred in failing to find that the mineral servitudes created in the credit sale deeds covered an undivided one-fourth interest in zones, reservoirs, and formations more than 9,059 feet below the surface of the disputed property; and
• the trial court erred in failing to find that the mineral servitudes in favor of George and Burette were extinguished by 10-year prescription of nonuse on April 19,1987.

The plaintiffs’ case hinges on their interpretation of the 1970 donation. In essence, they argue that the reservation pertaining to minerals in the 1970 donation did two things. First, it created a mineral servitude over Marie’s undivided three-fourth’s of the property. Second, Marie reserved her “open mine” rights as usu-fructuary of an undivided one-fourth of the property, which plaintiffs equate to a mineral servitude to the depth of 9,059 feet.

Before analyzing the 1970 donation, we begin with the judgment of possession rendered March 23, 1965, and the effect of the open mines doctrine on the rights of Marie and her children. As stated, the judgment of possession recognized Marie as owner of one-half of the community property from her marriage to Elbert. As to Elbert’s half of the community property, Marie as legatee was sent into possession of one-half of Elbert’s share of their community property. Thus, Marie then owned outright three-fourth’s of the property. George and Burette were placed into possession of the ^remaining undivided one-fourth of the property, subject to a usu-fruct in favor of Marie.

Plaintiffs contend that the open mines doctrine must be applied to determine the actual mineral interests acquired by Marie, George, and Burette. Plaintiffs assert that at the time of the judgment of possession in 1965, the TP SUK Minor Unit No. 1 Well, which had been drilled to a depth of 9,059 feet, had been producing for almost nine years. They reason that, under the open mines doctrine, Marie’s usufruct included minerals as to all zones, reservoirs, and formations located less than 9,059 feet below the surface, while George and Burette had only the naked ownership of minerals located more than 9,059 feet below the earth’s surface. We find the plaintiffs’ reasoning and application of the open mines doctrine to be in error.

The case Gueno v. Medlenka, 238 La. 1081, 117 So.2d 817 (1960), addressed the open mines doctrine and the respective rights of a usufructuary and a naked owner under the Civil Code of 1870, which was in effect in 1965. In that case, there had not been any production of oil, gas or other minerals from the land prior to the creation of the usufruct by testament. After both the usufructuary and naked owners granted separate mineral leases covering the land, the issue presented was whether the usufructuary had any authority to grant a mineral lease or any right in the minerals to be produced from the land. The court relied on La. C.C. art. 552 (1870), which provided that a usufructuary has a right to the enjoyment and proceeds of mines and quarries in the land subject to the usufruct, provided the mines and | inquarries were actually worked before commencement of the usufruct; however, the usufructuary has no right to mines and quarries not opened. The Gueno court recognized that the law considered the exploration of oil and gas to be mining and that Article 552 (1870) applied to the exploration of oil and gas. Applying Article 552 (1870), the court determined that the naked owner, not the usufructuary, had the right to open new mines and explore for minerals on the land and that the usufructuary had no right to such minerals produced from the land. See also King v. Buffington, 240 La. 955, 126 So.2d 326 (1961).

Under the open mines principles as set forth in Article 552 (1870) and discussed in Gueno, supra, Marie as usufructuary had the right to one-fourth of the proceeds from the oil and gas production from the TP SUK Minor Unit No. 1 Well, which was producing at the time the usufruct began in 1965, and was thus an “open mine.” The rights of the usufructuary of land under the Code of 1870 and Gueno were to proceeds from the open mine. The landowner rights to explore for and produce minerals remained with the naked owners.

As the naked owners, George and Bu-rette had the operational interests giving them full use and enjoyment of any further mineral 1 n development on the land. Nothing in the open mines doctrine at the time limited their undivided one-fourth naked ownership interest to zones, reservoirs, or formations more than 9,059 feet below the earth’s surface. George and Burette had the overall right to the minerals in proportion to their one-fourth interest, subject to Marie’s rights as usufructuary to the proceeds of “open mines.”

Having established the respective interests of Marie, George, and Burette after the judgment of possession rendered in Elbert’s succession, we next consider the effect of the 1970 donation, the subsequent clarification instrument, and the correction instrument on the respective interests of Marie, George, and Burette.

A donation inter vivos is a contract by which the donor gratuitously divests himself of a thing in favor of the donee, who accepts it. La. C.C. art. 1468. A contract is interpreted to determine the common intent of the parties. La. C.C. art. 2045; Stephenson v. Petrohawk Properties, L.P., 45,296 (La.App.2d Cir.6/2/10), 37 So.3d 1145. When the words of a contract are clear, explicit, and lead to no absurd consequences, no further interpretation may be made to determine the parties’ intent. La. C.C. art. 2046. The words of a contract must be given their generally prevailing meaning, with words of art and technical terms given their technical meaning when the contract involves a technical matter. La. C.C. art. 2047. Each provision of a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

As stated in Stephenson, supra (citations omitted):

The determination of whether a contract is clear or unambiguous is a matter of law. Ambiguity exists as to the parties’ intent when the contract lacks a provision on the issue or when the language of the contract is uncertain or fairly susceptible to more than one interpretation.

Id., 45,296, p. 7, 37 So.3d at 1149.

In the 1970 donation, Marie made two dispositions. First, she donated to George and Burette, in equal portions, “[a]ll of her right, title and interest” in a “tract of land in Sections 26, 27, 34 and 35, Township 17 North, Range 16 West” (hereafter the “Elbert tract,” which included the disputed property). Second, she donated a smaller half-acre piece of property to George alone. Focusing on the donation of the Elbert tract, Marie clearly and unambiguously gave all of her interests in the Elbert tract to her children. Regarding her three-fourth’s undivided interest, she conveyed ownership of the land itself. Regarding the one-fourth undivided interest, Marie freed George and Burette’s naked ownership from her usufruct of the land.

However, the 1970 donation included the following reservation:

Grantor reserves unto herself all of the oil, gas and other minerals in and under said property during the remainder of her life, together with all income from minerals from said property.

This reservation of “all of the oil, gas and other minerals” for the property “during the remainder of her life” again requires a review of 11sthe extent of Marie’s retained rights to the minerals for her different undivided interests.

The first effect of the mineral reservation clause was that it created a limited lifetime mineral servitude over Marie’s three-fourth’s ownership interest. This servitude would have included all exploration and production rights and would have necessarily encompassed 75 percent of any production income.

The second effect of the mineral reservation clause was that it provided a separate mineral right consisting of a usufruct over one-fourth of the income derived from the producing TP SUK Minor Unit No. 1 Well. Cf. La. R.S. 31:16 and 31:189. Marie did not create a servitude over the undivided one-fourth interest. As discussed, the rights of a usufructuary of land under the code of 1870 and Gueno, supra, were to proceeds from the open mine. The rights to explore for and produce minerals remained with the naked owner. A usufruc-tuary cannot create a mineral servitude by reserving her rights under the open mines doctrine.

All of Marie’s mineral production income rights in both her newly created three-fourths mineral servitude and her one-fourth usufruct of the mineral income would have been subject to the existing oil and gas lease. Marie’s reservation of both interests would 114have assured her 100 percent of the lease royalty from the producing TP SUK Minor Unit No. 1 Well. Thus, the reservation of all minerals in and under the property “for the remainder of her life” necessarily included “all income” from such minerals.

The reservation in the 1970 donation was soon explained and changed when on October 10, 1970, Marie, George, and Bu-rette executed, in authentic form, the clarification instrument. Referencing the 1970 donation, the clarification instrument states that “it was the intention of all parties that [Marie] did reserve all usu-fruct of income from the property during the remainder of her life.” It goes on to state that the parties agree that “all income from minerals, timber, rights of way and any and all other income from said property is hereby the property of [Marie], and always has been her property during the remainder of her life.”

From our reading of the clear and unambiguous language of the clarification instrument, we find that the parties intended the new reservation language to wholly replace the language of the reservation in the 1970 donation to reflect their true intent. First, the clarification instrument in referencing the 1970 donation states that it “was the intention of all parties ” (emphasis added). This language indicates that the expression of the mineral reservation in the 1970 donation did not reflect the parties’ true intent. Second, the common expression in both instruments for the reservation was that the rights were intended to exist “during the remainder of her life,” which the clarification instrument confirms was only a “usufruct of income” pertaining to the | ^mineral estate, the sole topic of reservation relevant to this matter in the 1970 donation. The clarification instrument further expanded the rights retained by Marie as usufructuary to include timber and other income. Third, the new expression within the reservation of a “usufruct of income” from the minerals necessarily eliminated the limited lifetime mineral servitude concept reflected in the language of the 1970 donation. A usufruct affecting rights in the minerals is not a mineral servitude. La. R.S. 31:26 and 31:189. We must also observe that the important use right of a mineral servitude for the exploration and development of property by drilling wells would be precarious indeed when made contingent on the lifetime of a person. That odd contingency in the 1970 donation only further confirms the parties’ true intent, as later clarified, to be a usu-fruct right affecting primarily the existing royalty production.

In summary, the fact that the new reservation in the clarification instrument, which was meant to clarify what the parties intended in the 1970 donation, expressed only a “usufruct” without mention of a mineral servitude confirms that Marie did not intend to reserve a mineral servitude in the donation. The apparent intent of the reservation in the 1970 donation was to provide a sufficient income for Marie during the remainder of her life. The clarification instrument likewise reflects and serves this intent by making certain that Marie derived all income from the property she donated to her children.

11fiFor these reasons, we find that, as a result of the clarification instrument, no mineral servitude was reserved or created by Marie in the 1970 donation. Instead, she reserved a usufruct of all the property’s income, while donating her undivided three-fourth’s interest in the land and her one-fourth interest as usufruct to George and Burette. Thus, the donation, as clarified, made George and Burette full owners of the Elbert tract, subject to the usufruct of income from the property in favor of Marie.

We note that Marie and George executed a third authentic act, the correction instrument, on January 12, 1971. This act was intended to correct the description of the half-acre tract donated to George. In the correction instrument, Marie reserved “the usufruct of all income from said property, including all income from minerals during the remainder of her life, together with the right to live in said property without payment of any rent.” The reservation of “all income from said property” is in accord with the reservation in the clarification instrument.

Now we turn to the credit sale deeds and the plaintiffs’ arguments concerning what Marie conveyed, the extent of the mineral servitude created in favor of George and Burette, and whether the mineral servitude was extinguished by the 10-year prescription of nonuse.

As with other contracts, deeds must be interpreted so as to ascertain the true intent of the parties. This is done by examining the deed itself without resort to extrinsic evidence, unless there is 117ambiguity or doubt as to the parties’ true intent. Doyal v. Pickett, 628 So.2d 184 (La.App. 2d Cir.1993); Williams v. Hawthorne, 601 So.2d 672 (La.App. 2d Cir.1992). We find no ambiguity in the credit sale deeds.

George, Burette, and Marie all joined as vendors in the credit sale deeds conveying the disputed property to the Fords and Haskins. The Fords and Haskins each acquired 20.2 acre tracts that had been part of the Elbert tract. Both deeds state that Marie joined to convey “all of her right, title and interest in and to the property, together with all reservations of minerals, income rights, timber rights, all rights of usufruct and habitation and all other rights in and to the” property described in the deeds. Through this broad language, Marie divested herself of all her interests in the property. Thus, the Fords and Haskins received ownership of the disputed property unburdened with any interests or rights Marie may have had in such property. As previously addressed, Marie had no mineral servitude at the time of the sales to the plaintiffs.

George and Burette, by virtue of the 1970 donation and the clarification instrument, owned all of the land, including the mineral rights. George and Burette’s ownership was burdened only by Marie’s usufruct over the minerals and timber and other income from the property. In the credit sale deeds, George and Burette conveyed their interest in the disputed property, but they reserved “all of the oil and gas, but not coal, lignite or shale.” As the landowners, George and Burette had the right to explore for and produce minerals, and |isthey created mineral servitudes covering the land sold to the Fords and Has-kins for all depths and formations. La. R.S. 31:24. The mineral servitudes gave George and Burette the right to enjoy the disputed property for the purpose of exploration for and production of minerals and the reduction of minerals to possession and ownership. La. R.S. 31:21.

Also, George and Burette stipulated “that any income or revenue from the oil and gas rights shall be paid to [Marie] so long as she lives.” This acknowledged or effectively recreated the interest in favor of Marie in the nature of a usufruct of the income from her children’s oil and gas servitude for the remainder of her life. Nevertheless, Marie died two years after the credit sale deeds, and any interests she had through the stipulation or any usufruc-tuary income interests that, arguably, might have been conveyed to the Fords and Haskins terminated at her death. La. C.C. art. 567. From that point forward, George and Burette, and their successors-in-interest, had full, unburdened mineral servitudes of oil and gas to all depths on the disputed property.

Plaintiffs’ argument that the mineral servitudes covering the disputed property prescribed by nonuse is premised on the assertion that the reservations in the credit sale deeds applied to George and Bu-rette’s undivided one-fourth interest in oil and gas located more than 9,059 feet below the earth’s surface, where there was no production to interrupt prescription. As previously addressed in our discussion of the open mines doctrine, we find no merit to the | ^plaintiffs’ arguments concerning the open mines doctrine and how its application affected the rights of Marie, George, and Burette. The record shows that George and Burette’s mineral servitudes covering the Ford and Haskins’ tracts have not prescribed.

Prescription of nonuse commences on the date the mineral servitude is created. La. R.S. 31:28. Here, the mineral servi-tudes were created when the credit sale deeds were executed on April 19, 1977. Prescription of nonuse is interrupted by good faith operations for the discovery and production of minerals. La. R.S. 31:29. Specifically applicable here is La. R.S. 31:37:

Production from a conventional or compulsory unit embracing all or part of the tract burdened by a mineral servitude interrupts prescription, but if the unit well is on land other than that burdened by the servitude, the interruption extends only to that portion of the servitude tract included in the unit.

The record shows that the TP SUK Minor Unit No. 1 Well began producing in 1956 and is still producing today. While the well is not located on the tracts sold to the Fords and Haskins, those tracts are within the geographical bounds of the production unit. Therefore, the prescription of non-use never commenced to run on the mineral servitudes created by George and Bu-rette in the credit sale deeds. The record does not show that the mineral servitudes have been lost by nonuse. For these reasons, we find no merit to the first assignment of error.

120-Second Assignment of Error

The plaintiffs assert that the trial court erred in finding that the Lesters own the rights to the minerals under the disputed property. They argue that none of the judgments of possession or deeds in their chain of title purport to place the Lesters in possession of the mineral rights.

As stated above, the record shows that George and Burette established mineral servitudes covering the disputed property and that these servitudes have not prescribed as claimed by the plaintiffs. Moreover, the judgment of possession (Exhibit 19) rendered on April 17, 1979, in Marie’s succession placed George and Burette in possession in equal portions of all her property. Included under “Minerals” is an interest payable from Hurley Oil and Gas Company (“Hurley”) covering the “North 1212 feet of the NE ½ of Section 34, Township 17 North, Range 16 West.” This description appears to encompass the area from which the Ford and Haskins tracts were carved out. The judgment of possession (Exhibits 20 and 22) [ 21rendered in 1982 in George’s succession placed Mary Elizabeth Gunning Lester (“Mary”) in possession of two-thirds of his estate and George Bryan Moncrief, his son, in possession of one-third of the estate. The estate included the minerals being produced by Hurley from the “Minor Gas Unit.” The record (Exhibit 21) further shows that George Bryan Moncrief conveyed to the Lesters all of the interest acquired by him in his father’s succession, including all min-erais and specifically referring to those being produced by Hurley. Finally, Mary was the sole legatee in the succession of Burette and her husband in a judgment of possession (Exhibit 23) rendered December 19, 2002. This judgment of possession includes among the minerals those then being produced by Loutex Production Co. from “Minor # 1 Lease” covering the East half of Section 34. Thus, we find that this chain of title shows the Lesters to be successors-in-interests to the mineral rights at issue in this dispute. More importantly, the plaintiffs have not proved that they own the minerals.

Third Assignment of Error

The plaintiffs assert that the trial court erred as a matter of law in failing to find that a mineral lease executed by the Les-ters in favor of Chesapeake on June 6, 2009, and a “Memorandum of Oil, Gas And Mineral Lease” executed on June 9, 2009, are invalid insofar as they purport to cover the plaintiffs’ land. For the reasons already mentioned, we find no merit to this assignment of error.

CONCLUSION

122For the reasons stated, we affirm the judgment of the trial court denying and dismissing the claims of the plaintiffs. Costs of appeal are assessed to the plaintiffs.

AFFIRMED.

      . The trial court conducted a bifurcated trial to first determine the ownership of the mineral interests at issue.

      . As shown by the property descriptions in the credit sale deeds, the Fords purchased the “West 750 feet of the North 1212 of the East Half of Section 34, Township 17 North, Range 16 West,” and the Haskins (Gene and his then wife Louise Waters Haskins) purchased the "East 750 feet of the West 1500 feet of the North 1212 feet of the East Half of Section 34, Township 17 North, Range 16 West.” The Haskins later divorced, and Mrs. Haskins conveyed her interest in the property to her former husband, who is a plaintiff in this matter.

      . While plaintiffs sought to present expert testimony to counter that of the defendants, counsel for plaintiffs maintained that expert testimony was not proper on the issue concerning the interpretation of legal documents.

      . La. R.S. 31:190 of the Mineral Code, which went into effect on January 1, 1975, adopted the principle stated in Article 552 (1870) by providing that a usufruct of land which is that of a surviving spouse in community includes the use and enjoyment of the landowner's rights in minerals as to mines or quarries actually worked when the usufruct was created. However, an amendment in 1986 (Acts 1986, No. 245, § 1), allows a surviving spouse usufructuary, absent any contrary provision in the instrument that creates the usufruct, to use and enjoy the landowner’s rights in minerals, whether or not mines or quarries were worked when the usufruct was created. However, the usufructuary is not entitled to execute a mineral lease without the consent of the naked owner. La. R.S. 31:190(B).

      . The smaller tract donated to George is not relevant to this matter. We note that the 1970 donation’s reservation of Marie's right to live in the home "last above described” clearly refers to this smaller tract, which appears from Elbert's judgment of possession to have been the site of the Moncrief family home in Greenwood, Louisiana.

      . Under La. R.S. 31:15, a landowner may reserve his right to explore and develop his land for the production of minerals and to reduce them to possession. So, when a landowner reserves "minerals,” it is understood that the landowner is creating a mineral servitude.

      . As provided by La. R.S. 31:26, "A usufruc-tuary cannot establish a mineral servitude on the estate of which he has the usufruct even for the period of his usufruct.”

      . Though not assigned as an error, the plaintiffs argue that the trial court erred in allowing the defendant’s expert, Morgan, to testify, while disallowing the testimony of their own expert, Downer. We note that Morgan’s testimony and Downer’s proffered testimony addressed the interpretation of Elbert’s judgment of possession, the 1970 donation, the clarification instrument, the correction instrument, and the two credit sale deeds to determine who owns the mineral rights at issue. The trial court indicated in its written reasons for judgment that it based its factual findings on the authentic acts and succession judgments in evidence and not on the parole evidence adduced at trial or the depositions offered into evidence. Having reviewed the competing expert testimony and other testimony and depositions in the record and having found little of assistance in these offerings, this court too bases its findings on the authentic acts and judgments of possession without regard to the parole evidence. Therefore, we will not consider the issue raised concerning the expert testimony.

      . As stated, the parties introduced over 100 exhibits in the record with little, if any, testimony or explanation offered on the relevance of these exhibits. Thus, it was left for the court to attempt to parse the meaning and relevance of the various exhibits to the issues on appeal. We note that the trial court found many to be without any significant evidentia-ry value, and this court agrees.