text:
    GREAT SOUTHERN DREDGING, INC. v. FEDEX CORPORATE SERVICES, INC. and John Doe.
    No. 2012 CA 0357.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.
    Timothy K. Lamy, New Orleans, LA, for Plaintiff/Appellant, Great Southern Dredging, Inc.

      Lauren Fajoni Bartlett, W. Paul Anders-son, New Orleans, LA, Robert R. Ross, Memphis, TN, for Defendant/Appellee, FedEx Corporate Services, Inc., John Doe, Federal Express Corporation & Gina Piz-zitola.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   WHIPPLE, J.

LThis matter is before us on appeal by plaintiff, Great Southern Dredging, Inc. (“Great Southern”), from a judgment of the trial court granting summary judgment in favor of defendants, Federal Express Corporation, FedEx Corporate Services, Inc., and Gina Pizzitola (collectively referred to herein as “FedEx”), and dismissing plaintiffs cause of action with prejudice. For the following reasons, we affirm.

DISCUSSION

On February 6, 2008, Great Southern hired FedEx to deliver a sealed bid from Covington, Louisiana, to the Greater La-fourche Port Commission in Galliano, Louisiana. According to the face of the “FedEx U.S. Airbill,” completed by Great Southern and numbered 862900591301, Great Southern contracted for “FedEx Priority Overnight” delivery service, which provided for delivery the “[njext business morning” ... “[t]o most locations.” Great Southern’s deadline for submission of its bid to the Greater Lafourche Port Commission was 2:00 p.m. on February 7, 2008. The bid was delivered by FedEx at 2:52 p.m. on February 7, 2008. As such, the bid was rejected as untimely and returned to Great Southern unopened by the Greater Lafourche Port Commission.

Thereafter, Great Southern filed a petition for damages against FedEx, contending that the “FedEx Priority Overnight” delivery designation required that the bid be delivered by 10:30 a.m. the next day, or at the very latest, by noon. Specifically, Great Southern contended therein that FedEx’s breach of the terms contracted for in its airbill and/or negligence in failing to timely deliver the bid package caused Great Southern to lose revenue and incur damages. In response, FedEx filed a motion for summary judgment, contending that it was entitled to | ¡judgment in its favor as a matter of law in that at all pertinent times, FedEx did not offer a service with a commitment time any earlier than 4:30 p.m. for delivery to Galliano, Louisiana.

Following a hearing on the motion, the trial court granted summary judgment in favor of FedEx and dismissed Great Southern’s petition with prejudice, based on the court’s finding that there were no material issues of fact and that “the language on the face of the airbill is plain and simple.” A judgment in accordance with the trial court’s findings was signed on November 29, 2011. Great Southern then filed the instant appeal.

On appeal, Great Southern contends that the trial court erred in finding: that FedEx fulfilled its contractual obligations; that the FedEx Airbill is not ambiguous; and that there are no material issues of fact as to the intent of the parties. Thus, the issue presented for review is whether, on the record before us, the trial court erred in granting summary judgment and dismissing Great Southern’s claims.

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Henderson v. Kingpin Development Company, 2001-2115 (La.App. 1st Cir.8/6/03), 859 So.2d 122, 126. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

We have thoroughly reviewed the evidence in the record and agree with the trial court that summary judgment in favor of FedEx was properly granted herein. The FedEx Airbill at issue clearly qualifies its service and states only that FedEx Priority Overnight service delivers packages the next business morning “[t]o most | locations.” There is no guarantee whatsoever on the face of the airbill (or otherwise demonstrated in the record herein) to show that FedEx contractually agreed that Great Southern’s bid would be delivered to Galliano, Louisiana, by 10:30 a.m. or even by noon for that matter. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046.

Although Great Southern contends that based on its prior experience, packages sent via the “FedEx Priority Overnight” service usually arrived at their intended destination before 10:30 in the morning or at the very least before noon, such a result was not contractually guaranteed herein, given the clear language of the airbill. Moreover, Great Southern does not dispute that prior to sending the bid, it made no inquiry whatsoever as to whether Galli-ano, Louisiana, was a location for which FedEx did guarantee delivery by the “next business morning.”

Therefore, we affirm the November 29, 2011 judgment of the trial court granting FedEx’s motion for summary judgment and dismissing Great Southern’s cause of action with prejudice in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1B. Costs of this appeal are assessed to the Plaintiff/Appellant, Great Southern Dredging, Inc.

AFFIRMED.

      . Gina Pizzitola was employed by FedEx as the delivery courier in this matter.

      . Although we agree with the trial court that the language on the face of airbill is clear and unambiguous, we additionally note that FedEx established that by the terms of its Service Guide, FedEx Priority Overnight delivery provides for a delivery time of “next business day by 10:30 a.m. to most areas” and further "[b]y noon, 4:30 or 5 p.m. to some rural areas.”


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Joseph V. FOSTER, Jr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2012 CA 0358.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Joseph V. Foster, St. Gabriel, LA, Plaintiff/Appellant In Proper Person.
    William Kline, Baton Rouge, LA, for Defendant/Appellee Louisiana Department of Corrections.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

12Joseph V. Foster, Jr., an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), filed a petition for judicial review, seeking review of his lost property claim. We affirm the judgment dismissing his claim.

FACTS AND PROCEDURAL HISTORY

Foster’s petition for judicial review alleges that when he was transferred by DPSC from Camp J to Camp D, he was forced to place his hobbycraft property in storage. At some point thereafter, Foster received additional hobbycraft property which he purchased prior to the transfer, and that was placed in storage as well. When he eventually received his stored property after being transferred to another prison, Foster alleged that he was missing property valued between $12,000.00 and $16,000.00.

Foster instituted a lost property claim (# PC-2010-1368) and was allegedly offered $2,000.00 in settlement of his claim, but rejected the offer. After exhausting his administrative remedies, he filed this petition for judicial review, seeking full compensation for the lost property, as well as additional compensation of $10,000.00 for inconvenience, litigation, and loss of income from the property, and litigation costs. After screening, the Commissioner recommended that Foster’s petition be dismissed, and thereafter the court rendered judgment dismissing the suit without prejudice. This appeal by Foster followed.

DISCUSSION

Although Foster filed a petition for judicial review in accordance with La. R.S. 15:1177 after exhausting his administrative remedies, the judicial review procedure does not apply to delictual actions for injury or damages. Tort claims must be filed separately as original civil actions. La. R.S. I,.¾15:1177(0. Furthermore, the exclusive venue for delictual actions for injury or damages is the parish where the prison is situated to which the prisoner was assigned when the cause of action arose. La. R.S. 15:1184(F). East Baton Rouge Parish, where Foster filed his petition, was not the parish where Foster was incarcerated when the cause of action arose. When a prisoner files such a suit in an improper venue, the court may raise the exception of improper venue on its own motion and dismiss the suit. La. R.S. 15:1184(B). Therefore the court did not err in dismissing Foster’s petition for judicial review without prejudice.

DECREE

The judgment appealed from is affirmed. Costs of this appeal are assessed to appellant, Joseph V. Foster, Jr.

AFFIRMED.


author: McClendon, j.

text:
    Golden JONES v. IBERVILLE PARISH COUNCIL.
    No. 2012 CA 0391.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Karen Hayes Green, Baton Rouge, LA, Elaine-Michelle Simmons, Kenner, LA, for Plaintiff/Appellant Golden Jones.
    Jack K. Whitehead, Jr., John-Ed L. Bishop, Baton Rouge, LA, for Defendant/Appellee Iberville Parish Council.
    Before WHIPPLE, MeCLENDON, and HIGGINBOTHAM, JJ.
   McClendon, j.

12Golden Jones appeals a judgment dismissing his action for failure to request service of process within the time period required by LSA-R.S. 13:5107 D(l). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 25, 2011, Golden Jones, through counsel, filed a Petition for Damages, alleging that he had been wrongfully terminated by the Iberville Parish Council (“the Council”) because he had made a workers’ compensation claim, Mr. Jones requested service on the Council, but paid no filing or service fees at that time. Rather, Mr. Jones filed a “Motion to Proceed In Forma Pauperis.” On April 6, 2011, the trial court denied Mr. Jones’s pauper motion.

Because his pauper request was denied, Mr. Jones paid the filing fees on June 3, 2011, and paid for service of citation on June 24, 2011, more than 90 days after filing of the petition. The Council was served with Mr. Jones’s petition on July 7, 2011.

On July 12, 2011, Mr. Jones filed a “Motion & Order to Extend Time for Service on Defendant” seeking an “extension of time to execute service” on the Council. The trial court subsequently signed the order granting Mr. Jones’s motion.

On July 22, 2011, the Council filed a “Declinatory Exception of Improper Service,” alleging that Mr. Jones’s petition should be dismissed without prejudice because service of process was not requested within ninety days of commencement of the action as required by LSA-R.S. 13:5107 D(1). Following a hearing, the trial court granted the Council’s exception, effectively dismissing Mr. Jones’s petition. Mr. Jones has appealed, alleging that the trial court erred in granting the Council’s exception.

1 aDISCUSSION

The Council is a political subdivision of the State of Louisiana. La. Const. Art. 6, § 44(2). As such, service of citation on the Council “shall be requested within ninety days of the commencement of the action.” LSA-R.S. 13:5107 D(1). “If service is not requested by the party filing the action within the [ninety day] period ... the action shall be dismissed without prejudice ... as to the ... political subdivision ... upon whom service was not requested within the [ninety day] period.” LSA-R.S. 13:5107 D(2).

On appeal, the trial court’s dismissal of a suit for failure of the plaintiff to timely request service is subject to the manifest error standard of review. Johnson v. Brown, 2003-0679 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 322; Pylant v. Jefferson Parish, State of Louisiana Dept. of Health and Hosp., 05-148 (La.App. 5 Cir. 6/28/05), 907 So.2d 807, 809, writ denied, 05-1992 (La.3/17/06), 925 So.2d 537.

Mr. Jones contends that the trial court erred in finding that service was not requested timely because he requested service on the Council in the original petition. However, service of citation is not considered requested until the clerk receives a request for service and payment or an order granting pauper status. See Jenkins v. Larpenter, 04-0318 (La.App. 1 Cir. 3/24/05), 906 So.2d 656, 659, writ denied, 05-1078 (La.6/17/05), 904 So.2d 711. Accordingly, because the clerk did not receive payment for service within ninety days of the filing of the petition nor was an order granting pauper status obtained within ninety days of the filing of the petition, service was not timely requested within the period required by LSA-R.S. 13:5107 D(1).

Louisiana Code of Civil Procedure article 1672 ,C provides that the failure to timely request service of citation is ground for dismissal of an action without prejudice “unless good cause is shown why service could not be requested.” Although “good cause” is not defined in the article, Louisiana courts strictly construe the “good cause” requirement. Tranchant v. State, 08-0978 (La.1/21/09), 5 So.3d 832, 837.

4Mr. Jones contends that the trial court had already determined that “good cause” existed when it granted his extension of time to execute service on August 1, 2011, so it could not grant the Council’s exception and reverse its prior finding of “good cause.” Mr. Jones avers that once the trial court granted his extension, the Council should have timely filed a motion for a new trial or sought appellate review of that ruling. Because the Council failed to do so, Mr. Jones concludes that the trial court’s subsequent grant of the Council’s exception was improper.

Although the August 1, 2011 order granted Mr. Jones an extension of time for service to occur, it had no bearing on the resolution of the issue presented here. The motion for extension of time was filed on July 14, 2011, which was outside of the ninety days allowed by law for requesting service. If Mr. Jones had sought a “good cause” determination arising from his failure to request service within ninety days, LSA-C.C.P. art. 963 requires the motion “be served on and tried contradictorily with the adverse party.” See LSA-C.C.P. article 1672 C and Mohsen v. Mohsen, 08-1703 (La.App. 1 Cir. 12/23/08), 5 So.3d 218, 221 (“The order sought by Damaris in this case was not one to which she was clearly entitled and required supporting proof; accordingly, the motion had to be served on and tried contradictorily with Murad.”) Even though the Council had been served with the petition on July 7, 2011, Mr. Jones never requested service nor was the Council ever served with his ex parte motion for extension of time.

Nevertheless, Mr. Jones contends that the trial court erred in failing to find that “good cause” existed for his failure to request service within the ninety day period. Mr. Jones notes that his pauper status was not denied by the trial court until April 6, 2011, or forty days after it had been filed with the petition. Mr. Jones avers that he was not notified of the denial of his pauper status until April 18, 2011, leaving only thirty-eight days to execute service in a timely manner. Moreover, Mr. Jones asserts that during the relevant time period, he was unemployed due to his on-the-job injury, scheduled to undergo surgery related thereto, and had lost his home in a January 9, 2011 house fire. Mr. Jones |fisubmits that these series of events made it impossible for him to generate and pay filing fees within thirty-eight days.

We note that Mr. Jones’s work-related injury and details surrounding the house fire were known by Mr. Jones at the time he filed his petition and his motion seeking pauper status. Nevertheless, the district court, on April 6, 2011, denied Mr. Jones’s motion seeking pauper status, and Mr. Jones has never sought appellate review of that ruling. Moreover, the trial court’s denial of Mr. Jones’s pauper motion was rendered well in advance of the ninety-day deadline and afforded Mr. Jones sufficient time to request service as required by LSA-R.S. 13:5107 D(1). In light of the foregoing, we cannot conclude that the trial court manifestly erred in dismissing Mr. Jones’s suit for failure to timely request service.

CONCLUSION

For the foregoing reasons, the January 3, 2012 judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff, Golden Jones.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 1672 C recognizes that the objection of untimely service can be raised by the declinatory exception.

      . The "Motion to Proceed in Forma Pauper-is” did not include any specific details regarding Mr. Jones’s circumstances or financial condition. However, attached to the motion were the affidavits of Mr. Jones and Dewayne Oubre, a third party having personal knowledge of Mr. Jones's financial condition, which allegedly verified Mr. Jones’s lack of means to pay court costs. The affidavits are not included in the record.

      . We note that Mr. Jones also asserts that the trial court erred in considering a reply memorandum filed by the Council and mailed to counsel for Mr. Jones on Friday, October 7, 2011, contending that it was untimely. Uniform Rules of District Courts Rule 9.9(c) provides that ”[t]he mover or exceptor may furnish the trial judge a reply memorandum, but only if the reply memorandum is furnished to the trial judge and served on all other parties so that it is received before 4:00 p.m. on a day that allows one full working day before the hearing.” Because the hearing was not scheduled until Wednesday, October 12, 2011, and Mr. Jones does not allege that he did not receive the reply memorandum after October 10, 2011 at 4:00 p.m., the memorandum was timely submitted pursuant to Rule 9.9(c) and could be considered by the trial court.


author: HIGGINBOTHAM, J.

text:
    Diann and Richard PUMPHREY v. Rene A. HARRIS, Sheryl Harris, and Rah Associates, Inc.
    No. 2012 CA 0405.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Stephen M. Huber, Charles M. Thomas, New Orleans, LA, for Plaintiffs-Appellants, Diann and Richard Pumphrey.

      Vincent F. Wynne, Jr., Shannon K. Low-ry, Brad D. Ferrand, Covington, LA, for Defendants-Appellants, Renee Harris, Sheryl Harris, RAH Associates, Inc. and Notre Maison, LTD.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

| ;>This is an appeal from a summary judgment rendered in favor of the defendant builders and dismissing the plaintiff homeowners’ claims under the 1997 version of the New Home Warranty Act (NHWA) with prejudice. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On December 16, 1998, Diann and Richard Pumphrey (the plaintiffs) purchased a new home in Mandeville, Louisiana, that was built by defendants, Rene A. Harris, Sheryl Harris, RAH Associates, Inc., and Notre Maison, LTD. (hereafter referred to collectively as “the builders”). Over nine years later, on May 5, 2008, the plaintiffs filed suit against the builders, asserting claims under the NHWA for cracks that had developed in the concrete foundation slab and tile flooring in their home.

The plaintiffs allege that they discovered a crack in their home’s foundation slab in January 2008. They quickly hired a professional engineer, Friedrich W.L. Gurtler of Gurtler Bros. Consultants, Inc., who inspected their home and concluded that the foundation slab was cracked from the front of the home to the rear, in a way that extended completely through the full depth of the slab, making it a condition that was conducive to moisture intrusion or pest entrance. Mr. Gurtler recommended that the full length of the crack be exposed and sealed with a structural epoxy to seal against moisture and pests. The plaintiffs notified the builders of the slab defects, but they allege that the builders failed to remedy the deficiencies, which prompted this lawsuit.

|sThe builders also hired a professional engineer, Travis E. Tisdale of VECO Consulting, L.L.C. Mr. Tisdale inspected the plaintiffs’ home and observed a small crack in the slab under a front window, some separation in the grout of the tile flooring in a rear bathroom, and a crack in the slab that ran generally from the front of the plaintiffs’ home to the rear. Mr. Tisdale indicated that the long crack in the slab was not indicative of a structural failure of the foundation, and he agreed that the crack in the slab could be repaired by exposing it and filling it with epoxy grout material to prevent moisture from entering the crack.

The builders filed a motion for summary judgment, alleging that there were no genuine issues of material fact with regard to the plaintiffs’ inability to prove that the cracked slab in their home constituted a major structural defect under the 1997 NHWA. Thus, the builders maintained that the plaintiffs’ NHWA claims had prescribed. The builders supported their motion with Mr. Tisdale’s affidavit, referencing his consulting firm’s inspection report and concluding that the foundation crack was “the result of differential settlement” and it “did not constitute a structural failure in the home[.]” Conversely, the plaintiffs opposed the motion, relying on Mr. Gurtler’s affidavit wherein he concluded that “the cracks in the [plaintiffs’] foundation and floor systems constitute major structural defects.” The plaintiffs also relied on Mr. Gurtler’s opinion that, “the foundation and floor systems have actual physical damages caused by a failure of their load-bearing portions that affects their load[-]bearing functions.... Additionally, the [plaintiffs’] home will be unlivable while these major structural defects are repaired.”

After a hearing on July 7, 2011, the trial court granted the builders’ motion for summary judgment, dismissing the plaintiffs’ NHWA claims against the builders in a final judgment signed on July 25, 2011. The trial court issued written reasons for the judgment, stating that “[t]he definition of major structural defect | includes physical damage to foundation systems but only ‘to the extent the home becomes unsafe, unsanitary, or is otherwise unliveable [sic].’ ... The Court is of the opinion that the ‘unliveable’ [sic] condition under [the NHWA] ... does not mean unliveable [sic] for a short period of curative work.” The plaintiffs appealed devolutively, assigning two errors: (1) The trial court erred when it narrowed the definition of “unlivable” and heightened the plaintiffs’ burden of proof in a manner unsupported by the NHWA; and (2) The trial court erred by improperly evaluating testimony and weighing evidence to conclude that there was no genuine issue of material fact in this case.

LAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ. P. art. 966(A)(2).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Vicksburg Healthcare, LLC v. State ex rel. Dept. of Health and Hospitals, 2010-1248 (La.App. 1st Cir.3/25/11), 63 So.3d 205, 207. A fact is material if it is essential to a cause of action under the applicable theory of recovery. Generally, material facts are those that potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Guardia v. Lakeview Regional Medical Center, 2008-1369 (La.App. 1st Cir.5/8/09), 13 So.3d 625, 628.

Additionally, in ruling on a motion for summary judgment the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Guardia, 13 So.3d at 628. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id. Furthermore, if the mover will not bear the burden of proof at trial on the matter that is before the court, the mover’s burden is to point out that there is an absence of factual support for one or more essential elements to the adverse party’s claim, and then the adverse party must produce factual evidence sufficient to satisfy the evi-dentiary burden of proof at trial If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854 (La. App. 1st Cir.3/28/03), 844 So.2d 339, 341.

The NHWA provides the exclusive remedies, warranties, and prescriptive periods as between builders and owners relative to construction defects in new homes. La. R.S. 9:3150; Hutcherson v. Harvey Smith Const., Inc., 2008-1046 (La.App. 1st Cir.2/13/09), 7 So.3d 775, 778. The 1997 version of the NHWA requires builders to warrant “major structural defects” to owners for ten years following the warranty commencement date, which in this case was the date that the plaintiffs purchased their home. See La. R.S. 9:3144(A)(3) and La. R.S. 9:3143(7). Physical damage to the foundation or floor system in a home is explicitly enumerated and defined by statute in the NHWA as a major structural | (¡defect and is consequently, covered by the NHWA. See La. R.S. 9:3143(5)(a) & (g); Prestridge v. Elliott, 2003-94 (La.App. 3d Cir.6/4/03), 847 So.2d 789, 793-94 (plaintiffs claim for differential settlement of his home’s foundation, commonly referred to as a cracked slab, was covered by the NHWA).

Louisiana Revised Statutes 9:3143(5) unambiguously defines a “[mjajor structural defect” as:

[A]ny actual physical damage to the following designated load-bearing portions of a home caused by failure of the load-bearing portions which affects their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise unlivable:
(a) Foundation systems and footings.
(b) Beams.
(c) Girders.
(d) Lintels.
(e) Columns.
(f) Walls and partitions.
(g) Floor systems.
(h) Roof framing systems,
(Emphasis added.)

Both experts in this case acknowledged that there was actual physical damage (a long crack the depth of the entire concrete slab) that occurred in a designated load-bearing portion — the foundation system — of the plaintiffs’ home, but the experts disagreed as to how the cracked slab affected the load-bearing function of the foundation system and whether the physical damage led to an unsafe, unsanitary, or otherwise unlivable condition in the home. Physical damage does not always equate with structural damage. Bynog v. M.R.L., L.L.C., 2005-122 (La.App. 3d Cir.6/1/05), 903 So.2d 1197, 1201, writ denied, 2005-1792 (La.1/27/06), 922 So.2d 551. However, the NHWA unambiguously requires actual physical damage for the builders’ warranty to apply. See La. R.S. 9:3144(B)(13); Bynog, 903 So.2d at 1201. Thus, the plaintiffs have the burden of proving that the defect (the slab crack) found in the load-bearing portion (the foundation) of their home made it unsafe, unsanitary, or otherwise unlivable. La. R.S. 9:3143(5).

|7At the hearing on the builders’ motion for summary judgment, the trial court was focused on the “livability” portion of the statutory definition when it pointed out that the only evidence regarding the livability of the plaintiffs’ home was in connection with the relatively short period of time that would be required for the recommended injection/sealant repair remedy. By doing so, the trial court either disregarded or discounted the evidence provided by the plaintiffs’ expert, Mr. Gurtler, who opined that the load-bearing function of the home’s foundation system was affected by the entry of pests and moisture through the cracks in the slab that was “at minimum unsanitary and perhaps unsafe.” The builders’ expert, Mr. Tisdale, did not refute this evidence, but he was of the opinion that the load-bearing function of the home’s foundation system was not affected by the cracked slab. Resolution of the conflicting expert testimony necessitates a credibility determination.

It is apparent to us on our de novo review that to reach its conclusions, the trial court improperly weighed the credibility of the opposing experts. The law is well settled that the trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence in making its decision whether to grant or deny a motion for summary judgment. See Smith, 639 So.2d at 751; Guardia, 13 So.3d at 628; and Weeks v. Sunstream, Inc., 2009-706 (La.App. 3d Cir.2/10/10), 30 So.3d 1163, 1166, unit denied, 2010-0577 (La.6/25/10), 38 So.3d 337. Instead the trial court must assume that all affiants are credible. Weeks, 30 So.3d at 1166. That did not happen in this case.

We find that the plaintiffs produced factual support sufficient to meet their burden to show that the cracked slab in their home’s foundation was unsanitary. Therefore, there is a genuine issue of material fact as to whether the cracked foundation slab in the plaintiffs’ home meets the NHWA’s statutory definition of a major structural defect. Consequently, we conclude that the trial court erred in Isgranting summary judgment in favor of the builders and dismissing the plaintiffs’ NHWA claims against the builders.

CONCLUSION

For the expressed reasons, we reverse the summary judgment that was granted in favor of the builders and dismissed the plaintiffs’ claims. All costs of this appeal are assessed against the defendant builders, Rene A. Harris, Sheryl Harris, RAH Associates, Inc., and Notre Maison, Ltd. We remand to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The NHWA was originally enacted in 1986, and has since been amended multiple times. Since the plaintiffs occupied their home immediately after purchasing it in December 1998, the 1997 version of the NHWA in effect at that time controls, and the later amendments are inapplicable. See Barnett v. Watkins, 2006-2442 (La.App. 1st Cir.9/19/07), 970 So.2d 1028, 1034, writ denied, 2007-2066 (La.12/14/07), 970 So.2d 537.


author: McCLENDON, J.

text:
    EAST BATON ROUGE PARISH SCHOOL BOARD v. Judy GREEN.
    No. 2012 CA 0421.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Karen D. Murphy, Baton Rouge, LA, for Plaintiff/Appellee East Baton Rouge Parish School Board.
    Kenneth R. Williams, Baton Rouge, LA, for Defendani/Appellant Judy Green.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McCLENDON, J.

12An employee seeks review of an Office of Workers’ Compensation decision that terminated the employee’s indemnity and medical benefits related to a mental injury. For the reasons that follow, we reverse. We also render judgment to award the employee total permanent disability benefits.

FACTS AND PROCEDURAL HISTORY

Judy Green was employed by the East Baton Rouge Parish School Board as a custodian. Ms. Green was injured in the course and scope of her employment with the East Baton Rouge Parish School Board on December 13, 1999, when she injured her back as she lifted a garbage can to place trash into a dumpster. The employer paid indemnity benefits until January 19, 2003, at which time benefits were terminated by the employer.

Subsequently, Ms. Green filed a claim for retroactive resumption of indemnity benefits, which was docketed as case # 03-01375. Therein, she alleged disability due to a mental condition arising from her December 13, 1999 accident. This culminated in a consent judgment signed on December 10, 2003, which ordered the employer to retroactively resume the payment of indemnity benefits and to pay Ms. Green’s expenses for psychiatric treatment.

Also, on December 5, 2003, the Office of Workers’ Compensation (“OWC”) appointed Dr. Glenn Estes, a psychiatrist, to evaluate whether Ms. Green’s psychiatric condition was related to her on-the-job accident of December 13, 1999. Dr. Estes subsequently performed the independent medical exam (“IME”) on April 20, 2004.

On December 1, 2005, the employer filed a “Disputed Claim for Compensation,” seeking termination of Ms. Green’s indemnity benefits, including termination of medical benefits for psychiatric treatment. The employer contended that Ms. Green’s “psychiatric problems are not the result of her work-related physical injury.” In response, Ms. Green filed an answer wherein she sought, among other things, permanent and total disability benefits pursuant to LSA-R.S. 23:1221(2)(a).

|sThe parties jointly submitted the matter on exhibits and briefs, with all exhibits, including the relevant medical records and depositions of the treating health care providers, being duly admitted. Following its consideration of the evidence, the OWC entered a written judgment on February 25, 2010, awarding Ms. Green temporary total disability benefits, but terminated “all indemnity and medical benefits arising out of a mental injury” from the date of judgment.

Ms. Green has appealed, asserting that the OWC erred in relieving the employer of liability for payment of benefits and medical expenses attributable to the mental aspects of her work injury. Ms. Green also asserts that the trial court erred in denying her permanent and total disability benefits.

DISCUSSION

Ms. Green contends that the December 10, 2003 consent judgment, which awarded her benefits for claims related to her mental condition, recognized that her mental condition was related to her work injury such that the judgment in effect became the “law of the case” on that issue. Ms. Green submits that the December 10, 2003 judgment conclusively controls the issue of whether she suffered a compensable mental injury as contemplated by LSA-R.S. 23:1021(8)(c) and (d). As such, Ms. Green asserts that the OWC could not review the causation issue, but could only terminate the award if the employer could show that Ms. Green’s psychiatric condition, along with her chronic pain, was no longer of sufficient severity to contribute to her current total disability.

As applied to workers’ compensation claims, however, we note that the OWC has continuing jurisdiction and “may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in [its] opinion, it may be justified.” LSA-R.S. 23:1310.8(A). In the consent judgment, although the employer agreed to pay medical benefits related to the mental injury, the OWC made no specific ruling or finding regarding a causal connection. The parties further stipulated that that court “will order an IME for which JUDY GREEN is ordered to attend and fully cooperate.” The IME Order required Dr. Estes to specifically address, 14among other things, “diagnoses” and “causation of diagnoses.” Accordingly, we cannot conclude that the consent judgment precluded the OWC from revisiting the issue of causation.

Nevertheless, Ms. Green asserts that the record reflects that her mental injury was caused by the December 13, 1999 accident. Ms. Green contends that there is no evidentiary basis to support the OWC’s conclusion that her psychiatric condition was not rendered symptomatic by her December 13, 1999 accident at work. Ms. Green asserts that she had no pre-accident history of serious psychological illness and if she had a predisposition, it was clear from her treating physician’s testimony that the accident caused a physical injury which triggered her disabling illness.

The Louisiana Supreme Court addressed the issue of compensation for mental injuries resulting from work-related accidents in Sparks v. Tulane Medical Center Hosp. and Clinic, 546 So.2d 138, 143-44 (1989), wherein it noted:

In so-called “physical-mental” injury cases, where a mental injury or illness develops secondary to an ascertainable physical injury, Louisiana courts have uniformly found that the employee is entitled to compensation benefits for any disability resulting from the mental injury and to reimbursement for medical expenses incurred in the treatment of that condition. See, e.g., Westley v. Land & Offshore, 523 So.2d 812 (La.1988) (employee suffered post traumatic stress syndrome secondary to physical injury caused by fall); Droddy v. Cliff's Drilling, Inc., 471 So.2d 223 (La.1985) (employee suffered depressive neurosis as “emotional overlay” to physical injury caused by fall). See also Jordan v. Southern Natural Gas. Co. [v. Southern Natural Gas Co.], supra, 455 So.2d [1217] at 1222 [(La.App. 2 Cir.1984)] (“[W]hen a plaintiff develops a disabling anxiety syndrome, traumatic neurosis, or other mental disorder as a result of a work related physical injury, he can recover compensation benefits even if he has recovered physically from the injury.”) Allowance of coverage in these “physical-mental” injury cases seems clearly appropriate under the Act’s definition of “injury,” which covers not only the initial injury suffered by the employee but also “such disease or infections as naturally result therefrom.”

Following the court’s opinion in Sparks, the Louisiana Legislature enacted LSA-R.S. 23:1021(8), which states, in pertinent part:

|s(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

Thus, in order to prevail, a claimant must prove by clear and convincing evidence that the physical injury caused the mental injury. Further, the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and the diagnosis must meet the most current criteria established by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. Charles v. South Central Industries, 96-0883 (La.11/25/96), 683 So.2d 706, 709.

Although compensation laws are to be construed liberally in the claimant’s favor, the worker’s burden of proof is not relaxed. Charles, 683 So.2d at 709. Disability can be proved by medical and lay testimony; the hearing officer’s factual determination whether the worker has discharged his burden of proof should not be disturbed on review absent manifest error. Id.

Ms. Green contends, however, that since the parties entered into the prior consent judgment, the burden of proof was on the employer, as mover, to show that the mental injury was not causally related or was no longer of sufficient severity to contribute to her current total disability. We need not address this argument, finding that Ms. Green, even if she bore the burden, established by clear and convincing evidence that her physical injury caused her mental injury.

|fiThe medical records set forth the history of Ms. Green’s back injury, which ultimately led to a failed back surgery in November of 2001. In a treatment note dated August 21, 2001, Dr. Sandra Weitz, who was treating Ms. Green for her back injury, indicated that she instructed Ms. Green to “continue present psychological therapy.” Moreover, a December 3, 2001 progress note from Dr. Craig Waggoner, the clinical psychologist providing Ms. Green psychological therapy, indicated that Ms. Green “verbalized an understanding of the symptoms presented that are related to chronic pain and how chronic pain can cause depression.” Dr. Waggoner also indicated that Ms. Green should continue to participate in group therapy sessions to increase her knowledge of factors that contribute to her chronic pain problem and the appropriate self-management strategies.

In January 2002, due to continuing psychological problems, the employer’s nurse, Sharon Campo, referred Ms. Green to a psychiatrist, Dr. Kenneth Todd. Dr. Todd, who saw Ms. Green two or three times in 2002, diagnosed Ms. Green with depression and anxiety disorders, not otherwise specified. Dr. Todd testified that Ms. Green “had significant psychiatric difficulties long before her [December 13, 1999] injury” and that “she was treated [for psychiatric problems] in 1996.” Dr. Todd further indicated that the work injury probably exacerbated her prior psychiatric condition, but that it was probable, with proper medication, that Ms. Green could return to work.

In December 2002, Dr. Weitz had Ms. Green admitted to Our Lady of the Lake Regional Medical Center’s psychiatric unit due to severe depression and suicidal ideation. Ms. Green was released shortly thereafter, but was readmitted to the unit in January 2003, where she stayed for approximately two weeks. Dr. Ron Tarav-ella, a psychiatrist who treated Ms. Green during both hospitalizations, has treated Ms. Green continuously since her hospitalizations.

|7In a deposition taken in November 2003, Dr. Taravella, when asked whether there was a causal relationship between Ms. Green’s physical injury and her mental condition, recognized other stressors in Ms. Green’s life, but indicated that “[t]he accident is the triggering mechanism in addition to being the straw that breaks the camel’s back.” Dr. Taravella opined that “it would be a disaster” for Ms. Green to return to work because she was “in a tremendous amount of pain. She has to take a tremendous amount of medication just to make it through the day. That interferes with her ability to pay attention, to concentrate, to focus mentally and to carry out tasks.” Dr. Taravella indicated that Ms. Green was “just about incapacitated,” and absent the December 13, 1999 accident, “she might have been able to carry on and continue to work.”

On April 20, 2004, Ms. Green saw Dr. Glen Estes, who was appointed by the court to perform an IME. Dr. Estes diagnosed Ms. Green with depression, not otherwise specified. Dr. Estes opined that Ms. Green’s “current emotional status is not supported by objective manifestations of major mental illness,” but indicated that it was possible the medications she was taking made her appear stable. Dr. Estes noted that he “found no evidence to say that her mental condition was a result of the December job injury” and there was “indication that significant emotional problems may have been preexisting.” Dr. Estes indicated that the “pain and consequences of a back injury” coupled with other life stressors, however, “could give a person some sort of emotional concerns.” Significantly, Dr. Estes noted that it was possible the mental injury could be related to the back injury, “but I didn’t find the evidence.” He conceded that Dr. Taravel-la had “more information probably” and that he had no reason to discredit Dr. Taravella’s opinion.

In a second deposition taken in April 2009, Dr. Taravella, who had continued to see Ms. Green at least once a month since December 2002, indicated that he maintained his original diagnosis — “depressive disorder | Rsecondary to a general medical condition, status post back surgery” — but added “probably a medication-induced psychosis” as an additional diagnosis. Dr. Taravella also acknowledged that Ms. Green had experienced depression prior to the accident at issue, but indicated that she was able to continue to function until the accident at issue. Dr. Taravella opined that although Ms. Green may have had a preexisting condition and may have had other stressors in her life, the back injury “caused her to become physically disabled, and the mental disability resulted therefrom.”

A compensable “physical-mental” injury can be established by showing that any pre-existing mental illnesses or susceptibility to mental illness was triggered or aggravated by a physical injury, although compensation ceases if the aggravation is only temporary. See Our Lady of Lake Regional Medical Center v. Matthews, 06-1584 (La.App. 1 Cir. 9/26/07), 971 So.2d 354, 362 n. 9. Although the medical evidence reflects that Ms. Green may have had emotional problems prior to her accident at work, there is no indication that her condition was disabling. Rather, Dr. Taravella opined that the accident triggered or aggravated any preexisting mental illness. Further, Dr. Todd admitted that the accident probably exacerbated her psychiatric condition. Nothing in the record disputes these findings.

Dr. Taravella, the treating psychiatrist who recognized other stressors in Ms. Green’s life, opined that the work-related accident was the triggering mechanism for Ms. Green’s depression. Dr. Estes, who performed the IME, recognized that Ms. Green’s condition was “apparently a mix of physical and emotional factors,” although he was “not sure what the mix was.” Dr. Estes, however, never determined that Ms. Green’s mental injury was not related to the December 1999 work injury. Rather, Dr. Estes, who acknowledged that Dr. Ta-ravella had more detailed information and did not dispute Dr. Taravella’s opinion, was simply unable to confirm Dr. Taravel-la’s opinion. Thus, Dr. Taravella’s diagnosis of a mental injury caused by a physical injury was not negated by the IME. In light of the foregoing, we conclude that there is no [(¡reasonable basis in the record to support a finding that Ms. Green’s current disabling mental injury is not related to her December 13, 1999 injury.

Moreover, the general jurisprudential rule is that a treating physician’s opinion is given more weight than a non-treating physician’s opinion. McCray v. Delta Industries, Inc., 00-1694 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 272. In McCray, the treating neurologist and a second neurologist hired to perform an IME “had widely disparate conclusions” regarding an employee’s back and/or neck injury and whether the employee had reached maximum medical improvement. Id. After considering the entirety of the record, this court noted that more weight should have been accorded the testimony of the treating neurologist over the findings of the neurologist performing an IME, “absent some indicia of unreliability” in the treating neurologist’s findings. Id. A fortiori, the opinion of Dr. Taravella, as the treating psychiatrist whose findings have not been challenged, is entitled to significant weight insofar as there are no indicia of unreliability in his findings.

Additionally, Ms. Green asserts that the OWC erred in failing to award her permanent total disability. The OWC, in denying Ms. Green’s claims for mental injury, did not address Ms. Green’s claim for permanent total disability in its judgment. When a judgment is silent as to a claim or demand placed before the court, it is generally presumed that the court denied the relief sought. Greene v. State ex rel. Dept. of Corrections, 08-2360 (La.App. 1 Cir. 6/19/09), 21 So.3d 348, 350 n. 2. Further, it can be infeiTed from the OWC’s termination of mental injury benefits that it would not have found Ms. Green to be totally permanently disabled as a result of her mental injury. Accordingly, we conclude that the OWC denied Ms. Green’s request for permanent total disability.

Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not the same or one similar to that in which the employee was customarily engaged when injured. LSA-R.S. 23:1221(1)(a) and (2)(a); Joseph v. J.E. Merit Constructors, Inc., 01-1666 (La.App. 1 Cir. 6/21/02), 822 So.2d 72, 77, unit denied, 02-2295 (La.4/4/03), |1fl840 So.2d 1201. A workers’ compensation claimant seeking permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. Morgan v. Glazers Wholesale Drug Co., 46,692 (La.App. 2 Cir. 11/2/11), 79 So.3d 417, 421. If an employee is shown to be totally disabled at time of trial, and the disability is of indefinite duration, then the employee is entitled to benefits for total permanent disability, as opposed to those for temporary total disability. Mazoch v. Employers Cas. Co., 514 So.2d 1184, 1189 (La.App. 1 Cir.1987), unit denied, 517 So.2d 812 (La.1988).

In his April 2009 deposition, the following exchange occurred between counsel and Dr. Taravella:

Q. At any time ... between November of '03 and the present time, have you felt that [Ms. Green] was capable of working or ... any sort of — I guess at a pace required of somebody who had to regularly work?
A. I don’t see that happening.
Q. Okay. Now, back then you had indicated that you did not feel at that time she could do any kind of work on any sort of regular basis?
A. Back then, meaning at the time of the deposition in—
Q. Correct.
A. —November of '03?
Q. Right.
A. Right.
Q. Now, what is your opinion today as to whether she can do any sort of work on a regular sustained basis?
A. It is unchanged, but I think prog-nostically it is worse because I think at that time the jury, so to speak, was still out since I had only known her for less than a year at that point, and there was always some hope that she would get better. But now we are fast-forwarding five and a half years into the future, and there has been no improvement. So I would imagine that this is her new base line level of functioning.
Q. Now, she is now, I think, 50 years old, is that correct?
A. Her date of birth is March, 1959. So, she just turned 50 about a month ago.
luQ. I know at the time you had indicated, I think, a pretty much guarded prognosis for her future employability, although you said that at that time you didn’t think she would work any or do any work for the foreseeable future. Would it be fair to say that in view of the passage of time and her condition being what it is, that it would be your professional opinion at this point that she will likely never be able to be gainfully employed at really any job on a sustained basis?
A. That is correct.
Q. And the reasons for that, Doctor, would you just—
A. Well, based on her present mental status, her inability to function without the high potency pain killers and their clouding effect on her mentation, as well as the chronic pain that she suffers, she has a lot of pain sitting in one position or standing in one position for any length of time, plus her mind is so cloudy with all the medications that she requires to control the pain, I just don’t see that changing.

Based on her treating physician’s unrebut-ted testimony, we conclude that Ms. Green met her burden of showing, by clear and convincing evidence, that she is unable to engage in any type of employment and that her disability is of indefinite duration. Therefore, she is entitled to permanent total disability benefits.

CONCLUSION

For the foregoing reasons, the February 25, 2010 decision is reversed insofar as it terminated “all indemnity and medical benefits arising out of a mental injury.” We also render judgment ordering that Ms. Green be awarded permanent total disability benefits in accordance with LSA-R.S. 23:1221(2). We remand this matter to the OWC for further proceedings consistent with this opinion. Costs of this appeal in the amount of $551.69 are assessed against the employer, the East Baton Rouge Parish School Board.

REVERSED IN PART; AFFIRMED IN PART; RENDERED; MATTER REMANDED.

      . Although the court ordered the parties to prepare a joint "Statement of Issues” to be delivered to Dr. Estes prior to the IME, Dr. Estes indicated that he did not receive the statement.

      . Subparagraph 8 was originally designated as subparagraph 7 when it was adopted by 1989 La. Acts No. 454, § 1, effective Jan. 1, 1990. The provisions of this subparagraph are unchanged.

      . Under the manifest error standard of review, the court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882.

      . Dr. Weitz was continuing to treat Ms. Green at the time of trial.

      . Dr. Todd Never saw Ms. Green after 2002.

      . Dr. Taravella noted that Ms. Green's husband was sick and had recently had a second amputation and that Ms. Green was also raising her eight-year-old granddaughter.


author: CARTER, C.J.

text:
    STATE of Louisiana v. Brandon DAVIS.
    No. 2012 KA 0386.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 2, 2012.

      Camille A. Morvant, II, Kristine M. Russell, Thibodaux, LA, for Plaintiff/Ap-pellee, State of Louisiana.
    Frank Sloan, Mandeville, LA, for Defendant/Appellant, Brandon Davis.
    Before CARTER, C.J., GUIDRY and GAIDRY, JJ.
   CARTER, C.J.

| ¡.The defendant, Brandon Davis, was charged by bill of information with aggravated battery (count 1), a violation of Louisiana Revised Statutes section 14:34, and armed robbery (count 2), a violation of Louisiana Revised Statutes section 14:64. He pled not guilty to the charges and, following a jury trial, was found guilty on count 1 of the responsive offense of simple battery, a violation of Louisiana Revised Statutes section 14:35; and guilty on count 2 of the responsive offense of simple robbery, a violation of Louisiana Revised Statutes section 14:65. The defendant filed a motion for postverdict judgment of acquittal, which was denied. For the simple battery conviction, the defendant was sentenced to six months imprisonment. For the simple robbery conviction, the defendant was sentenced to six years imprisonment at hard labor. The sentences were ordered to run concurrently. The defendant now appeals, designating one assignment of error. We affirm the convictions and sentences.

FACTS

On or about the evening of September 8, 2009, the defendant, Joel Barrios, and Timothy Lovelace patronized the Queen Bee Lounge in Raceland, Louisiana. Sandra Thompson, who lived in a trailer behind the lounge with her daughter, Ricki Lin Lewis, was the only employee working at the lounge that night. Lewis had helped at the lounge earlier, but returned to the trailer when Thompson arrived. Randy Reed, who lived in a camper behind the lounge and occasionally helped out, entered the lounge and announced that it was closing time.

According to Thompson, Lovelace approached Reed, informed him that they were not closing, and struck Reed with a pool stick. The defendant then struck Reed with a bar stool. Lovelace jumped over the bar and unsuccessfully tried to open the cash register. Lovelace then began taking bottles of liquor off the shelves |sand placing them on the bar. The defendant, Lovelace, and Barrios took the bottles of liquor out of the lounge and placed them in the defendant’s car. Reed managed to get outside, where the defendant and Lovelace began kicking and beating him. Lewis came out of her mother’s trailer, and tried to intervene. Lovelace struck her, knocking her unconscious. Thompson called 911, then approached the defendant, who was sitting in the driver’s seat of his ear. In response to Thompson’s request that he return the liquor, the defendant stated he could not. Lovelace then approached Thompson from behind and “slung” her, causing her to lose consciousness. Lovelace and the defendant drove away.

Deputy Shawn Gregory, with the St. Charles Parish Sheriffs Office, responded to the dispatch call and stopped the defendant’s car, with Lovelace riding on the hood. The defendant and Lovelace fled and Deputy Gregory was unable to apprehend them. Lafourche Parish law enforcement then took over the case.

The defendant testified that when Reed announced “last call,” Lovelace started beating him with a pool stick, and the defendant ran out the side door of the lounge. The defendant denied hitting Reed with a bar stool. The defendant further denied taking any liquor bottles from the lounge, stating that Thompson lied in testifying that the defendant touched the liquor. According to the defendant, Lovelace placed four or five liquor bottles inside the defendant’s car while the defendant was near the car, then Lovelace went back toward the lounge. The defendant testified that he punched Reed four or five times after Reed put his finger in the defendant’s face and said he knew who the defendant was. After the defendant got in his car, Thompson approached and asked him to return the liquor. The defendant testified he told Thompson, “Ms. Sandy, just back up. I don’t know what he’s going to do.”

| ,¡On cross-examination, the defendant testified Lovelace did not make him drive away from the lounge with the alcohol in his car. Also on cross-examination, the following colloquy took place regarding what the defendant did after driving away from the lounge:

Q. But you didn’t separate yourself from [Lovelace] and go home?
A. No, I didn’t.
Q. Y’all went party some more?
A. Yeah, we did.
Q. After all this, and you knew what had happened and you went partying with him?
A. Yes, sir.
Q. You drove him away from the scene, right?
A. Yes, sir.
Q. With the bottles and instead of going home and doing what you claim you were trying to do, what you actually did is drove around with him and it wasn’t till an hour or so later when the police found you?
The Court: Sir, you have to say yes or no.
[Defendant]: Yes, sir. Yes, sir.

DISCUSSION

In his sole assignment of error, the defendant argues that the evidence was insufficient to support a conviction for simple robbery because the items taken were not in the immediate control of another, nor were the items taken by use of force or intimidation.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV, § 1, cl. 3; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La.Code Crim. Proc. Ann. art. 821(B); State v. Ordodi, 2006-0207 (La.11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, Louisiana Revised Statutes section 15:438 provides that the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

Simple robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” La.Rev.Stat. Ann. § 14:65(A). The elements necessary to sustain a conviction of simple robbery are: 1) the taking of anything of value; 2) belonging to another; 3) from the person of another; 4) by use of force or intimidation. State v. Robinson, 97-269 (La.App. 5 Cir. 5/27/98), 713 So.2d 828, 830, writ denied, 98-1770 (La.11/6/98), 727 So .2d 444. The property taken in a robbery must be sufficiently under the victim’s control that, absent violence or. intimidation, the victim could have prevented the taking. State v. Thomas, 447 So.2d 1053, 1055 (La.1984).

Simple robbery is a general intent crime. See State v. Doucet, 93-1523 (La.App. 3 Cir. 5/4/94), 638 So.2d 246, 248-249; La. Rev. Stat Ann. § 14:10(2). An offender has the requisite general intent when “from the circumstances the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on his part to have accomplished such result.” State v. Elzie, 343 So.2d 712, 714 (La. 1977).

The defendant contends the evidence showed merely a theft. According to the defendant, there was nothing taken that was in the immediate control of anyone, and no one was threatened “in conjunction” with the taking of the liquor | (¡bottles. In support of his argument that these two elements of the crime of simple robbery were not proven at trial, the defendant asserts there was no testimony that any employee at the lounge “was behind the bar at the time of the theft,” Thompson did not testify that anyone threatened or intimidated her, and no one “used intimidation or force upon [her] to get her to surrender the liquor bottles.” The defendant maintains Thompson “was merely a witness to a theft of liquor from the Queen Bee Lounge.”

Thompson testified that she worked at the Queen Bee Lounge and on the night of the incident, “was more or less managing it.” At the time of the incident, Thompson was the only person working in the lounge. As an employee and acting manager, Thompson was in charge of the lounge, and, as such, the property that was in the lounge, including the liquor, was under her immediate supervision and jurisdiction. See State v. Roberson, 2006-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, 739-740, writ denied, 2007-1243 (La.12/14/07), 970 So.2d 531; State v. Johnson, 97-0317 (La.App. 4 Cir. 8/19/98), 718 So.2d 553, 556.

The defendant argues that no employee was behind the bar at the time the liquor was taken. According to the defendant, “there was no testimony from which one could determine the distance from the liquor bottles to anyone connected with the Queen Bee Lounge at the time of the theft.” However, Thompson’s testimony that she did not see Reed leave the lounge because she “was trying to stop them from getting in the register and taking the alcohol” establishes that she was within close physical proximity of Lovelace and the defendant as they took the liquor. Nonetheless, it is of no moment whether Thompson was standing next to Lovelace and the defendant, or standing at a distance from them while they took the liquor. Property is considered taken from the presence of the victim even if the victim is in one room, while valuables located in another room are removed. State v. Loyd, 1735,637 (La.App. 2 Cir. 2/27/02), 810 So.2d 1214, 1219, writ denied, 2002-1159 (La.4/21/03), 841 So.2d 779 (citing State v. Verret, 174 La. 1059, 142 So. 688 (1932)). See State v. Baldwin, 388 So.2d 664 (La.1980), cert denied, 449 U.S. 1103, 101 S.Ct. 901, 66 L.Ed.2d 830 (1981); State v. Long, 36,167 (La.App. 2 Cir. 10/30/02), 830 So.2d 552, 557 (where the money taken in an armed robbery was found to be in the immediate control of the manager (victim) even though she was in the restroom at the time the money was taken from the lounge). Thus, regardless of Thompson’s precise location in the lounge, the liquor was taken from the immediate control of Thompson, the acting manager who witnessed the liquor being taken.

Regarding the “force or intimidation” element of simple robbery, the defendant asserts that no one used force or intimidation on Thompson to make her surrender the liquor bottles. According to the defendant, Thompson did not testify that anyone threatened or intimidated her. However, Thompson testified that she witnessed Lovelace hit Reed with a pool stick and the defendant hit Reed with a bar stool. Thompson testified that the reason she did not stop Lovelace from taking the liquor was because she was scared. Thompson explained, “I was scared of being hurt. I mean, I was by myself and this was two guys that were just wild.”

Outside the lounge, Thompson saw the defendant and Lovelace kicking and beating Reed. When Thompson’s daughter intervened, Lovelace struck her and knocked her out. Thompson testified she did not see her daughter get hit, but found her unconscious. After the liquor was loaded into the defendant’s car, Thompson approached the defendant, who was sitting in the driver’s seat, and asked that he return the liquor. According to Thompson, the defendant told her to |sget out of his car because if she did not, Lovelace would kill her. Lovelace then grabbed her, and slung her to the ground, knocking her out.

The evidence establishes that during a very brief span of time, Thompson witnessed Lovelace and the defendant attack Reed in an unprovoked fashion, take bottles of liquor from the lounge, then continue to beat Reed. Thompson then found her daughter outside, unconscious after being struck by Lovelace. Finally, after Thompson asked the defendant to return the liquor, Lovelace attacked Thompson and knocked her out, as well. The defendant and Lovelace clearly created an atmosphere of fear and intimidation. See State v. Quac Tran, 2008-1103 (La.App. 4 Cir. 8/13/09), 18 So.3d 165, writ denied, 2009-2247 (La.4/16/10), 31 So.3d 1053. Although the defendant did not use actual force on Thompson, we note that resistance by the victim and the use of physical force by the perpetrator are not necessary to complete a simple robbery. State v. Jones, 00-190 (La.App. 5 Cir. 7/25/00), 767 So.2d 808, 810, writs denied, 2000-2449, 2000-2493 (La.6/22/01), 794 So.2d 782, 783. See Robinson, 713 So.2d at 830-831 (where the intimidation element of simple robbery was proved based on the victim’s being intimidated by the defendant’s demeanor and use of slang, despite the absence of any evidence that the defendant used any threatening words or gestures). See State v. Johnson, 10-611 (La.App. 5 Cir. 1/25/11), 60 So.3d 43; State v. McCall, 577 So.2d 764 (La.App. 2nd Cir.1991), writ denied, 582 So.2d 1304 (La.1991).

The parties to crimes are classified as principals and accessories after the fact. La.Rev.Stat. Ann. § 14:23. Principals are all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. La.Rev.Stat. Ann. § [914:24. See State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427, 428 (per curiam). Thus, the State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. State v. Arnold, 2007-0362 (La.App. 1 Cir. 9/19/07), 970 So.2d 1067, 1072, writ denied, 2007-2088 (La.3/7/08), 977 So.2d 904. A general principle of accessorial liability is that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts but also for the acts of the other. State v. Smith, 2007-2028 (La.10/20/09), 23 So.3d 291, 296 (per curiam).

While the defendant did not personally strike Thompson or her daughter, he struck Reed several times. Thompson witnessed the attack on Reed and was intimidated by the “wild” behavior. The defendant insisted at trial that he did not carry any liquor bottles from the lounge to his car. But even assuming such testimony is true, the defendant clearly took the liquor when he drove away with it in his car.

The defendant asserts there was no threat or intimidation “in conjunction” with the taking of the liquor bottles. The defendant’s assertion regarding the requirement of a temporal sequence is erroneous. The use of force or intimidation does not have to occur before, or contemporaneous with, the taking. The force or intimidation element of robbery is satisfied by evidence that force or intimidation directly related to the taking occurred in the course of completing the crime. State v. Meyers, 620 So.2d 1160, 1162-1168 (La.1998). Thus, a rational juror could have concluded that the intimidation of Thompson, whether inside or outside the lounge, occurred in the course of the defendant’s commission of a robbery. See Meyers, 620 So.2d at 1163.

When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, | inthat hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 82-2206 (La.2/27/84), 448 So.2d 676, 680. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La.App. 1st Cir.1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

The jury heard all of the testimony and viewed all of the physical evidence presented to it at trial and, notwithstanding any conflicting testimony, found the defendant guilty. The jury’s verdict reflected the reasonable conclusion that based on the physical evidence and testimony, the defendant, by use of intimidation, took bottles of liquor from Thompson without her consent. In finding the defendant guilty, the jury clearly rejected the defendant’s theory of innocence. See Captville, 448 So.2d at 680.

^CONCLUSION

After a thorough review of the record, we find the evidence supports the jury’s verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of the defendant’s hypothesis of innocence, that the defendant was guilty of simple robbery. See State v. Calloway, 2007-2306 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

CONVICTIONS AND SENTENCES AFFIRMED.

      . The defendant does not contest the conviction for simple battery.

      . Simple robbery is identical to armed robbery except that the perpetrator is "not armed with a dangerous weapon.” See La.Rev.Stat. Ann. § 14:64(A) & § 14:65(A).


author: GRIFFIS, P.J.,

text:
    Sarah BRAXTON, Appellant v. RESORTS CASINO (Resorts Tunica) and American Interstate Insurance Company, Appellees.
    No. 2011-WC-01202-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2012.
    Rehearing Denied April 16, 2013.
    Lawrence J. Hakim, Batesville, attorney for appellant.
    Courtney Leyes Tomlinson, Gary P. Snyder, Olive Branch, attorneys for appel-lees.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Sarah Braxton appeals the circuit court’s judgment affirming the decision of the Workers’ Compensation Commission that problems with her right knee were not caused by an on-the-job injury she sustained on September 21, 2007. She claims that the Commission’s decision is not supported by substantial evidence. We find no error and affirm.

FACTS

¶ 2. Braxton was an employee of Resorts Casino. She suffered an on-the-job injury on September 21, 2007, when she fell down four stairs on her way from the break room to her work station. The parties stipulated that Braxton suffered this work-related injury and that she injured her left knee, left hip, and right shoulder. The only issues presented to the administrative judge (AJ) were: (1) whether Braxton injured her right knee in the fall, and, if so, (2) whether the current treatment of her right knee, including a total/partial knee replacement, was reasonable and necessary.

¶ 3. At the time of the hearing, Braxton had been a dealer for Resorts Casino for about two and a half years. She also worked as a bus driver for ICS Headstart. Braxton had been treated for issues with her right knee before her fall, but she had been problem free for approximately seventeen months.

¶ 4. Braxton reported the fall to the security supervisor. She claimed that she thought she reported pain in her right knee. However, the written report of the incident signed by Braxton refers to her left knee. Braxton was transported to Baptist Memorial Hospital — DeSoto (“Baptist Hospital”), where she again reported an injury to her left knee. X-rays were made of her right shoulder, left hip, and left knee.

¶ 5. Almost three months later, Braxton saw Lydia Franklin, her nurse practitioner, with a complaint of right-knee pain. She told Franklin that her symptoms had lasted the past few days and were not getting better. On January 5, 2008, Brax-ton presented to the emergency room at Baptist Hospital. She claimed that she had injured her right knee on September 21, 2007. Braxton’s right knee was x-rayed, and she was referred to Dr. John Lochemes, an orthopedic physician. Brax-ton told Dr. Lochemes that she had injured her right knee in a fall at work.

¶ 6. Dr. Lochemes performed a partial medial meniscectomy and chondroplasty of the patella on her right knee on February 22, 2008. On June 4, 2008, Dr. Lochemes said that Braxton had osteoarthritis that was unrelated to the injury.

¶ 7. Braxton returned to see Dr. Lo-chemes in August 2008. An MRI showed advanced degenerative changes since her meniscectomy. He discussed possible joint replacement to address the arthritis, which Dr. Lochemes said would not be “workers’ compensation] related treatment.” When Braxton returned on September 24, 2008, with further complaints of pain, Dr. Lochemes suggested a total joint replacement “for the underlying osteoar-thritic condition that has not been advanced or aggravated by the workers’] compensation] injury.”

¶ 8. Dr. Gregory Dabov performed an independent medical examination on November 26, 2008. He indicated that Brax-ton’s problem with her right knee was related to her work injury. However, Dr. Dabov later admitted that he based that conclusion on the history given to him by Braxton. Dr. Dabov agreed that there was no evidence in Braxton’s medical records between the fall on September 21, 2007, and January 5, 2008, that indicated an injury to her right knee.

¶ 9. Dr. Dabov had actually seen Brax-ton for complaints of right-knee pain on April 21, 2006, eighteen months before her work injury. Braxton told Dr. Dabov that she had a long history of right-knee pain and had been through knee injections for at least four years. This was accurate because Braxton saw Dr. Robert Pickering more than six years before the fall, complaining of problems with both knees. Dr. Dabov prescribed physical therapy, knee injections, and anti-inflammatory medications.

¶ 10. After a hearing, the AJ determined that Braxton had failed to prove that she sustained an injury to her right knee in her fall on September 21, 2007. The Commission affirmed the order of the AJ without further comment. The circuit court affirmed the Commission’s decision.

¶ 11. The issue on appeal is whether substantial evidence supported the Commission’s decision that Braxton did not injure her right knee as a result of her fall on September 21, 2007.

STANDARD OF REVIEW

¶ 12. This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447 (¶ 7) (Miss.Ct.App.1999). Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Langford v. Southland Trucking, LLC, 30 So.3d 1266, 1275 (¶ 28) (Miss.Ct.App.2010). The Commission sits as the ultimate finder of fact, and “its findings are subject to normal, deferential standards upon review.” Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s ruling when its findings of fact are unsupported by substantial evidence or the decision was arbitrary and capricious. See Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224-25 (Miss.1997). “Matters of law are reviewed under the de novo standard of review.” Westmoreland, 752 So.2d at 448 (¶ 8).

ANALYSIS

¶ 13. Proof of a causal connection between Braxton’s fall at work and her right knee problems “must rise above mere possibility.” Janssen Pharmaceutica, Inc. v. Stuart, 856 So.2d 431, 436 (¶ 24) (Miss.Ct.App.2003). The Commission applied its “common knowledge, common experience!,] and common sense” when it weighed the evidence here. Id. at (¶ 23). There is substantial evidence supporting the Commission’s decision that the condition of Braxton’s right knee was unrelated to her fall at work, as shown below.

¶ 14. Braxton’s right knee pain occurred before her work fall. Campbell Clinic’s records demonstrate a history of knee pain in both knees for several years before the fall. In July of 2001, Braxton saw Dr. Pickering and complained of problems with both knees. Dr. Pickering diagnosed her with patellofemoral arthritis in 2001. He prescribed Celebrex for her treatment. In August 2001, Braxton said that Celebrex helped with her left knee, but she still had pain in her right knee.

¶ 15. In 2003, Braxton saw Nurse Franklin, complaining of knee pain. The records were not clear on which knee was treated.

¶ 16. In April 2006, she saw Dr. Dabov for pain in her right knee. Braxton told Dr. Dabov that she had a long history of right-knee pain. She told him she had her knee injected for at least four years. Dr. Dabov’s records indicate that Braxton had insidious onset, meaning there was no inciting or traumatic event. Dr. Dabov diagnosed internal derangement to the right knee with some patellofemoral syndrome. He prescribed physical therapy, right knee injections, and anti-inflammatory medications.

¶ 17. The statement Braxton signed at her job on the day of the fall indicated no complaints about her right knee. The hospital records on the day of the fall do not indicate any complaints about her right knee. She only complained about her right shoulder, left hip, and left knee. X-rays were taken only of her right shoulder, left hip, and left knee. No x-ray was taken of her right knee.

¶ 18. Braxton returned to work with no restrictions after only one day off. She did not return to any medical professional until three months after her fall, when she visited Nurse Franklin in December 2007.

¶ 19. This was the first time she complained of right-knee pain, except for when she received medical treatment before her fall. Braxton told Nurse Franklin that the symptoms in her right knee had only occurred in the last few days before her visit. The records do not indicate that Braxton told Nurse Franklin that she injured her right knee at work. In 2008 and 2009, Braxton continued to see Nurse Franklin for multiple complaints.

¶ 20. In January 2008, Braxton went to the emergency room for her right knee. She was referred to Dr. Lochemes. The x-ray from that visit was important to the AJ because it was after the fall but before her surgery. The x-ray showed only minimal degenerative changes. An MRI showed the need for surgery, a partial medial meniscectomy and chondroplasty of the patella on her right knee. She had this surgery in February 2008.

¶21. In March and April 2008, Dr. Lochemes removed fluid from Braxton’s right knee. In June 2008, he diagnosed her with osteoarthritis in the right knee. In August 2008, Dr. Lochemes stated that the effusion Braxton complained of was consistent with osteoarthritis. The MRI of her right knee in August 2008 indicated advanced degenerative changes.

¶ 22. Dr. Lochemes told Braxton that replacing the right knee joint to address the arthritis would “not be workers’ compensation] related treatment.” On Braxton’s last visit to Dr. Lochemes in September 2008, Dr. Lochemes noted that Braxton did not want to acknowledge that her knee symptoms were from the arthritis. He also recommended a “total joint replacement for the underlying osteoar-thritic condition that has not been advanced or aggravated by the work[ers’] comp[ensation] injury.”

¶ 28. Dr. Lochemes considered Brax-ton’s complete medical history. The AJ placed greater weight on Dr. Lochemes’ testimony because Dr. Lochemes considered Braxton’s complete medical history and because of all the medical tests he ordered.

¶ 24. In November 2008, Dr. Dabov again examined Braxton. Dr. Dabov did not have Braxton’s records from September 2007 or January 2008. He had records of visits in 2006 about her knees before the fall. He based' his conclusion that her right knee condition was related to the work accident on the history given to him by the patient. He stated he had assumed she had injured her -right knee at work because the right knee was the knee that was operated on, and the records were not clear on which knee, sometimes referring to the left knee.

¶ 25. The records and conclusions from the physicians listed above provide substantial evidence that Braxton’s problems with her right knee were unrelated to her fall at work. Under our standard of review in this case, we cannot judge the individual credibility of each physician. If the Commission’s decision is supported by substantial credible evidence, we must defer to that decision. In this case, there exists substantial evidence sufficient to support a finding that Braxton did not injure her right knee when she fell at work. Accordingly, we find Braxton’s argument that the decisions of the AJ and the Commission were not supported by substantial evidence to be without merit.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.


text:
    Chris COSNER a/k/a Chris Eugene Cosner, Appellant. v. STATE of Mississippi, Appellee.
    No. 2012-CP-00101-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.
    Chris Cosner, appellant, pro se.
    Office of the Attorney General by .Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Chris Cosner appeals the circuit court’s dismissal of his second motion for post-conviction collateral relief (PCR). Cosner argues the Mississippi Department. of Corrections (MDOC) erred when it deemed his failure to register as a sex offender as a “sex crime” and his conviction of possession with intent as a crime of violence. Cosner argues that this treatment makes his sentence mandatory day-for-day and makes him ineligible for parole, meritorious earned time, and trusty status. His second PCR motion is based on the same grounds as his first PCR motion, but with different named defendants. We find no error and affirm.

FACTS

¶2. On February 6, 2009, Cosner pled guilty to three charges: (1) possession of greater than 500 grams of marijuana (schedule I) with intent to sell, transfer, or distribute; (2) possession of greater than 100 dosage units of Alprazolam (schedule IV) with intent to sell, transfer, or distribute; and (3) failure to register as a sex offender.

¶ 3. Cosner filed his first PCR motion on December 7, 2009. In this motion, Cosner argued that he would not have pled guilty if he had been told that he would have to serve day-for-day and that his charges were considered violent. He also argued he was under mental duress at the time of his plea and that his counsel was ineffective. An evidentiary hearing was scheduled for August 13, 2010. On the morning of the hearing, Cosner decided to withdraw his motion before the hearing began.

¶ 4. Cosner then filed his federal habeas petition on November 15, 2010. He admitted that he had “not pursued an appeal or completed post-conviction remedies available to him in state court.”

¶ 5. On October 7, 2011, Cosner filed his second PCR motion. In this motion, Cos-ner stated that he withdrew his first motion because, after he spoke to his appointed counsel, he “decided that he was addressing his [PCR] motions in the wrong way.”

¶ 6. Here, Cosner expressly admits that his first PCR motion argued that his offenses were non-violent and did not carry day-for-day sentences. This is the same argument presented in this motion. Cos-ner repeated, in his first and second PCR motions, that he thought he would serve four years of his eight-year sentence.

¶ 7. In addition, in this motion, Cosner named different defendants and argued that this motion should not be barred. The first motion named the State of Mississippi as the defendant. This motion named “Christopher Epps, Commissioned,] and [the] Mississippi Department of Corrections” as the defendants.

¶ 8. The circuit court’s order stated that Cosner asserted that MDOC was not following statutory provisions for the classifications of inmates. The circuit court denied Cosner’s motion and found it was procedurally barred as a successive writ. The circuit court also noted that the review of the classification of inmates that Cosner requested was solely within the administrative purview of the MDOC.

STANDARD OF REVIEW

¶ 9. We will not reverse a circuit court’s dismissal of a motion for post-conviction collateral relief unless the circuit court’s decision was clearly erroneous. Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011) (citation omitted). When reviewing questions of law, this Court’s standard of review is de novo. Id. (citation omitted).

ANALYSIS

¶ 10. The circuit court properly dismissed Cosner’s motion for post-conviction relief because Cosner raises issues of inmate classification that are within the administrative purview of the MDOC and not an issue properly brought in a PCR motion.

¶ 11. Mississippi Code Annotated section 99-39-23(6)(Supp.2011) bars successive motions made under the Mississippi Uniform Post-Conviction Collateral Relief Act. “[A]ny order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion....” Miss.Code Ann. § 99-39-23(6) (emphasis added). However, there are exceptions to this bar:

Excepted from this prohibition is a motion ... raising the issue of the offender’s supervening mental illness before the execution of a sentence of death.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States that would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole[,] or conditional release has been unlawfully revoked.

Id.

¶ 12. The order that dismissed Cosner’s first motion was “any order dismissing the petitioner’s motion.” The statute does not address when a motion is dismissed voluntarily or otherwise without a hearing on the merits. The statute’s language states “any order dismissing.”

¶ 13. A petitioner who files a second PCR motion must demonstrate that he meets an exception in section 99-39-23(6). Johnson v. State, 962 So.2d 87, 89 (¶ 11) (Miss.Ct.App.2007). “The burden of proving that no procedural bar exists falls squarely on the petitioner.” Crawford v. State, 867 So.2d 196, 202 (¶ 7) (Miss.2003). Cosner argues that the circuit court incorrectly dismissed his second PCR motion because his sentences should have expired.

¶ 14. Cosner claimed a denial of “due process of law rights and double jeopardy for punitive punishment for a crime already consummated.” Cosner’s sentence expiration argument is a challenge to MDOC’s policies. Practically speaking, Cosner requested a review of his inmate classification. “For many such questions regarding confusion about the operation of the state’s system of incarceration, the proper procedure is for a prisoner to seek relief through the administrative processes of the Department of Corrections.” Burns v. State, 933 So.2d 329, 331 (¶ 9) (Miss.Ct.App.2006) (citing Miss.Code Ann. §§ 47-5-801-47-5-807 (Rev.2004)).

¶ 15. Agency procedures first, rather than post-conviction collateral relief, govern certain issues like inmate classification. Id. (citing Lewis v. State, 761 So.2d 922, 923 (¶¶ 3-4) (Miss.Ct.App.2000)). Classification of inmates is not an issue properly brought in a PCR motion; rather, it is within the administrative purview of the MDOC. Cosner should pursue administrative remedies available through the procedures of the MDOC. Therefore, we find no error and affirm.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.


author: LEE, C.J.,

text:
    Richard DUNN a/k/a Richard D. Dunn a/k/a Richard Dale Dunn, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01912-COA.
    Court of Appeals of Mississippi.
    April 16, 2013.
    David L. Walker, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

      Before LEE, C.J., CARLTON and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Tallahatchie County Circuit Court found Richard Dunn guilty of enticement of a child for engaging in sexually explicit conduct. The trial court sentenced Dunn to serve ten years in the custody of the Mississippi Department of Corrections followed by ten years of post-release supervision, with the first five years to be served on a reporting basis and the remaining five on a non-reporting basis. Dunn was also ordered to pay a $50,000 fine and $1,000 to the Mississippi Children’s Trust Fund.

¶ 2. Dunn now appeals, asserting the trial court erred in denying his motion in limine and in denying his motion for a judgment notwithstanding the verdict (JNOV). Finding no error, we affirm.

FACTS

¶ 3. L.B., who was twelve years old at the time of the incident, testified he was riding his bicycle home from the library on June 29, 2009, when a man driving a van stopped him. This man stated to L.B., “I will give you $4.00 if you let me suck your wee-wee.” L.B. responded, “What you talking about?” The man said, “I’ll give you $4.00 to give you a blow job.” L.B. refused, and went home to tell his mother, Tammy. Immediately thereafter, L.B. and Tammy attempted to find the man in the van. They could not find the van where the incident had occurred but saw it next to a Dollar General. Tammy was able to obtain the license-plate number. Only several minutes had elapsed from the time L.B. told Tammy until they found the van. Tammy then went to the police station to report the incident. This occurred in Charleston, Mississippi.

¶ 4. The police discovered the van belonged to Dunn and his wife, Kimberly. L.B. was shown a photographic lineup and identified Dunn as the man who had enticed him.

DISCUSSION

I. MOTION IN LIMINE

¶ 5. Dunn first argues the trial court erred in denying his motion in limine. Dunn was trying to exclude testimony from Tammy concerning her actions after L.B. told her about Dunn. The trial court ruled the testimony would be admissible but only if Tammy testified after L.B. testified as to what happened and what he told his mother.

¶ 6. “The standard of review governing the admission or exclusion of evidence is abuse of discretion.” Catchings v. State, 39 So.3d 943, 950 (¶ 29) (Miss.Ct.App.2009) (citing Williams v. State, 991 So.2d 593, 597 (¶ 8) (Miss.2008)). The trial court allowed Tammy to testify as to what L.B. told her about Dunn and their attempt to find Dunn under the excited-utterance hearsay exception. Rule 803(2) of the Mississippi Rules of Evidence states that an excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tammy’s testimony was clearly hearsay, as it was offered to prove that Dunn enticed L.B. Although the trial court found the statements to fall under the excited-utterance hearsay exception, there was no testimony that L.B. was under any stress at the time. L.B. testified that he was not scared. The testimony perhaps falls better under the present-sense-impression exception under Mississippi Rule of Evidence 803(1): “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” Regardless of the exception used, we cannot find the trial court abused its discretion in allowing Tammy to testify.

¶ 7. We further recognize that Tammy’s testimony could also be considered not hearsay. In Knight v. State, 601 So.2d 403, 406 (Miss.1992), the Mississippi Supreme Court noted that a statement made by a bystander to Knight was both not hearsay and hearsay. The statement was not hearsay to show “its effect on Knight, ... that it induced or contributed to his fear.” Id. It was hearsay because “[i]t can be read (or heard) to express an opinion concerning the nature of the situation in which Knight found himself.” Id. The court found the statement to fall under the present-sense-impression exception under Rule 803(1). Id. Tammy’s testimony was offered to show the effect of L.B.’s statements on her and her actions thereafter.

¶ 8. Whether Tammy’s testimony was hearsay or not, it was admissible; thus, this issue is without merit.

II. JNOV

¶ 9. In his other issue on appeal, Dunn contends the trial court erred in failing to grant a JNOV or, in the alternative, a new trial. Dunn argues the evidence was insufficient to support the guilty verdict. Regarding whether the evidence was legally sufficient to support the verdict, we look to our standard of review. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. The jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 10. Dunn’s main contention is that the evidence was too conflicting for the jury to resolve the evidence in the State’s favor. Dunn does concede that it is the jury’s duty to resolve any conflicts in the evidence. According to Mississippi Code Annotated section 97-5-33(6) (Supp. 2012), “[n]o person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct.” L.B. testified that a man approached him and asked to perform a sexual act upon him. L.B. immediately told his mother, and the two of them were able to track down Dunn’s van and get the license-plate number. L.B. was able to identify Dunn as the perpetrator. Dunn and his wife testified that he did not leave their house that particular day. The jury clearly found L.B.’s testimony to be more credible than that of Dunn and his wife. This issue is without merit.

¶11. THE JUDGMENT OF THE TALLAHATCHIE COUNTY CIRCUIT COURT OF CONVICTION OF ENTICEMENT OF A CHILD FOR ENGAGING IN SEXUALLY EXPLICIT CONDUCT AND SENTENCE OF TEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOLLOWED BY TEN YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $50,000 FINE AND $1,000 TO THE MISSISSIPPI CHILDREN’S TRUST FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P JJ., ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. BARNES AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT.

      . The Court of Appeals declines to identify minor victims of sexual crimes.