author: PATRICIA RIVET MURRAY, Judge. TOBIAS, J., GORBATY, J., BELSOME, J.,

text:
    John MILLER v. CRESCENT CITY HEALTH CARE CENTER.
    No. 2008-CA-1347.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2009.

      Ivan A. Orihuela, Riguer Silva, LLC, Kenner, LA, for Plaintiff/Appellant.
    Thomas C. Cowan, J. Michael Daly, Jr., Cowan & Lemmon, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   PATRICIA RIVET MURRAY, Judge.

| jThis is a nursing home medical malpractice action. The plaintiff, John Miller, appeals from the trial court’s decision sustaining a dilatory exception of prematurity and a peremptory exception of prescription filed by the defendant, Crescent City Health Services (“Crescent City”). For the reasons that follow, we affirm the trial court’s ruling sustaining the prescription exception, reverse its ruling sustaining the prematurity exception, and remand for further proceedings consistent with the views expressed in this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On September 17, 2003, Mr. Miller filed a complaint requesting a medical panel review pursuant to La. R.S. 40:1299.41, et seq. In his complaint, Mr. Miller alleged that Crescent City’s medical malpractice that formed the basis for his complaint arose out of the following facts: “On September 30, 2001, Vivian Miller, wife of John Miller, died as a result of negligent nursing care provided to her by Crescent City Health Care Center.” Thereafter, a medical review panel convened. The panel members unanimously determined that the evidence did not ^support the conclusion that Crescent City failed to meet the applicable standard of care as charged in the complaint.

On June 1, 2007, Mr. Miller filed the instant suit. According to the petition, Mr. Miller’s now deceased wife, Vivian Miller, was admitted to Crescent City’s nursing home on April 5, 2001, and resided there until September 17, 2001, when she died. The gist of the allegations of the petition is that Crescent City was negligent in providing nursing care to Mrs. Miller during the time she was in its care.

Crescent City responded by contemporaneously answering the petition and filing exceptions of prematurity and prescription. Crescent City asserted that it was a qualified health care provider and thus entitled to the protections of the Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (the “MMA”). It further asserted that several of the causes of action or complaints raised in Mr. Miller’s petition were not brought before the medical review panel as required by the MMA and thus were premature. La. R.S. 40:1299.47. It still further asserted that several of Mr. Miller’s claims were prescribed at least in part.

On November 30, 2008, a hearing was held on the exceptions. On January 9, 2009, the trial court rendered a judgment sustaining the exceptions for the reasons orally stated at the hearing. On January 22, 2008, the trial court rendered written reasons for judgment.

Is At the November 2008 hearing, Crescent City’s attorney acknowledged that insofar as Mr. Miller’s petition asserted malpractice claims that were reviewed by the panel it was timely filed. However, as to newly alleged malpractice claims — claims that were not raised in the complaint filed in the panel proceeding — Crescent City argued that those claims were premature and prescribed. Although the trial court sustained the prematurity exception, it declined to decide if those newly asserted malpractice claims were prescribed. The trial court further found that certain of the claims asserted in the petition were tort claims not subject to the MMA. The trial court found that those tort claims, which are subject to a one year prescriptive period, had prescribed. The trial court thus sustained Crescent City’s prescription exception as to the tort claims and dismissed those claims with prejudice. The trial court denied Mr. Miller’s motion for new trial. This appeal followed.

DISCUSSION

On appeal, Mr. Miller’s sole assignment of error is that the trial court erred in granting the exception of prematurity and the exception of prescription because the record does not contain sufficient evidence to support that ruling.

Prescription Exception

14Although Mr. Miller assigned as error the trial court’s granting of both the exception of prematurity and prescription, he briefed only the exception of prematurity. Nonetheless, we affirm the trial court’s ruling sustaining Crescent City’s exception of prescription as to the tort claims. Mrs. Miller died on September 30, 2001, but Mr. Miller failed to file suit until June 8, 2007, well beyond the one one-year prescriptive period. We thus find the trial court correctly sustained the prescription exception as to the tort claims.

Prematurity Exception

The gist of Mr. Miller’s argument is that Crescent City failed to introduce evidence at the hearing on the exceptions to establish the fact that Mr. Miller’s petition included allegations that were not raised in his medical malpractice complaint (request for review). This argument is based on the assumption that an exception of prematurity must be sustained unless the plaintiffs petition tracks the language in the complaint submitted to the medical review panel. This assumption is belied by the nature of a medical review panel proceeding.

By its nature, a medical review panel proceeding encompasses the plaintiffs’ entire substantive cause of action against a medical provider for the alleged malpractice-negligent provision of services. A medical review panel proceeding is a non-judicial, pre-suit filtering process that is a prerequisite for filing a claim against a qualified health care provider in court. Everett v. Goldman, 359 So.2d 1256 (La.1978); LSA-R.S. 40:1299.47(A)(1). Simply stated, the process is |ficommenced by the claimant filing a request for review or proposed complaint. Based on the evidence before it, the panel renders a decision regarding whether the evidence supports a finding that the medical provider breached the applicable standard of care.

|fiThe difference between a request for review to initiate a panel proceeding and a petition to initiate a lawsuit was addressed by the Louisiana Supreme Court in Perritt v. Dona, 02-2601, 02-2603 (La.7/2/03), 849 So.2d 56. The Court stated that a request for review “is not required to be a fact pleading with the specificity that may be required of a petition in a lawsuit; rather, the claim need only present sufficient information for the panel to make a determination as to whether the defendant is entitled to the protection of the Act.” Perritt, 02-2601, 02-2603 at p. 13, 849 So.2d at 65. A concurring justice further elaborated that although the MMA refers to the request for review as a “proposed complaint” and thus suggests the need for a claimant to set forth the standard of review, “such a necessity is tempered by the nature of the non-judicial setting and the differing roles of the experts on the review panel and the lay persons bringing the claims.” Perritt, 02-2601, 02-2603 at pp. 3-4 (Weimer, J., concurring), 849 So.2d at 68. Justice Weimer further noted that under Louisiana’s system of fact pleadings it is unnecessary to plead a legal duty or the standard of care. Perritt, 02-2601, 02-2603, at p. 4 (Weimer, J, concurring), 849 So.2d at 68 (citing La. C.C.P. art. 854, cmt. (a)). By analogy, Justice Weimer explained the same is true for the medical review complaint:

Likewise, the material fact allegations necessary for the malpractice complaint that commences the medical review panel proceedings must be sufficient for the expert panel to draw their conclusions regarding the applicable standard of care and whether a breach of that standard occurred. The material fact allegations should state, in laymen’s terms, the health care provider’s action or inaction and the claimant’s injury |7that would not otherwise have been incurred. Factual allegations of this nature thus satisfy the requirement in LSA-R.S. 40:1299.47(G)(1) and (2) that the expert panel’s conclusion be drawn from “the applicable standard of care as charged in the complaint.” LSA-R.S. 40:1299.47(G).

Perritt, 02-2601, 02-2603 at pp. 4-5 (Weimer, J, concurring), 849 So.2d at 68-69.

Applying these principles to the instant case, Mr. Miller’s complaint seeking review of his malpractice claim alleged that the malpractice at issue was the negligent nursing care provided by Crescent City to his wife, Vivian Miller, which resulted in her death. The medical review panel has already been convened and considered the claimed malpractice. The medical review panel reviewed the submissions of both Mr. Miller and Crescent City and determined that the evidence did not support a finding that Crescent City breached the standard of care. Our review of the petition filed by Mr. Miller reveals that he alleges that Vivian Miller died on September 30, 2001, as a result of negligent nursing care provided to her by Crescent City. This allegation was the subject of the medical review panel proceeding. Given that a medical review panel has already considered the claimed malpractice, we find that the trial court erred in maintaining the exception of prematurity-

DECREE

For the foregoing reasons, the judgment of the trial court sustaining the exception of prematurity is reversed. In all other respects, the judgment of the trial court is affirmed. This matter is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TOBIAS, J.,

concurs in part, dissents in part, and assigns reasons.

hi respectfully concur in the majority’s ruling that the peremptory exception of prescription filed by the defendant/appel-lee, Crescent City Health Services (“Crescent City”), was properly sustained by the trial court. I state my reasoning infra. However, I respectfully dissent from the majority’s ruling that overrules Crescent City’s dilatory exception of prematurity.

My review of the record establishes the facts of this case to be as follows:

This case arises out a claim filed by John Miller (“Miller”) against Crescent City, alleging that it provided improper care to Vivian Miller (“Vivian”), Miller’s wife, while in its care. Miller claims that Vivian suffered injuries and damages over an extended period of time, which lasted through 30 September 2001, the date on which she died.

The original complaint was timely filed with the Louisiana Patient’s Compensation Fund (“PCF”). See La. R.S. 40:1299.41, et seq. A medical review panel convened on 16 January 2007, which rendered a unanimous decision that the ^evidence submitted to the panel did not support that Crescent City failed to meet the applicable standard of care as charged in Miller’s complaint.

Miller filed the instant lawsuit on 1 June 2007. In response, Crescent City filed the dilatory exception of prematurity and peremptory exception of prescription. Crescent City argued that many of the allegations raised by Miller in his suit filed in the trial court were not properly brought before the medical review panel and, therefore, premature. Also, Crescent City contended that matters not properly brought before the medical review panel, i.e., breach of fiduciary duty and unfair trade practices, had prescribed because they were not brought within one year of the date of the alleged malpractice.

The matter was heard by the trial court, which granted the exceptions on 9 January 2009. In its reasons for judgment, the trial court found all new medical malpractice claims were premature, requiring that a new medical malpractice panel be convened. In addition, the court granted the exception of prescription as to the plaintiffs tort claims, dismissing them -with prejudice.

Miller filed a motion for new trial, which was subsequently denied by the trial court without hearing. It is alleged by Crescent City that no subsequent complaint to the PCF was ever filed by Miller. Thus, Crescent City asserts that all additional claims by Miller are now prescribed. However, the issue of whether Miller filed a new complaint with the PCF is not before us and is immaterial to our [..¡consideration because Miller appealed the trial court’s decision determining his claim was premature

In this appeal, Miller has assigned only one error for our review: the trial court erred in granting Crescent City’s exceptions of prematurity and prescription because the record did not contain sufficient evidence to support them. I discuss these in inverse order.

I. Prescription

The trial court correctly found that Miller’s claims for unfair trade practices and breach of fiduciary duty are prescribed. Vivian’s death occurred on 30 September 2001; Miller’s petition was filed on 1 June 2007, well outside the one-year prescriptive period for each of these alleged causes of action. While the allegations were not submitted to the medical review panel, they do not fall within the definition of “malpractice,” and the medical review panel could not rule upon them. Accordingly, Miller was required to file a separate suit within one year of Vivian’s death in order to preserve the non-malpractice tort claims. To the extent |4that the plaintiffs original petition filed in the trial court on 1 June 2007 contains additional allegations that can be construed as torts, these are prescribed.

II. Prematurity

I find that Miller correctly argues that the record before us is insufficient for the trial court’s granting of the exception of prematurity. At no time was the entirety of the initial complaint that Miller filed with the PCF, consisting of his cover letter of transmittal and draft “petition” (which I designate herein collectively as “Miller’s PCF Complaint”) and reviewed by a medical review panel entered into the record as designated on appeal pursuant to La. C.C.P. art. 2128 Therefore, I cannot ascertain, and certainly the majority did not and cannot ascertain, whether or not the trial court compared Miller’s PCF Complaint with the actual petition Miller filed in the trial court on 1 June 2007 (which I designate herein “the Filed Petition of 1 June 2007”) after the medical review panel had reached its decision. Additionally, the record on appeal does not contain any evidence of the submissions by the parties to the medical review panel; ergo, one has no idea what the medical review panel considered. However, Crescent City did | .^attach a copy of Miller’s PCF Complaint to its appellate brief filed in this court; this court cannot consider part of the Miller’s PCF Complaint because attachments to appellate briefs are not parts of the record on appeal, as explained infra.

Crescent City contends that Miller’s PCF Complaint was attached to its exceptions (actually meaning to its memorandum in support of its exceptions); however, I find the memorandum filed in support of the exceptions references Miller’s PCF Complaint as exhibit “B;” exhibit “B” to the exceptions in our record consists of only the cover letter sent to the PCF and a copy of the Filed Petition of 1 June 2007. (That is to say, the appellee attached the wrong “petition” to the exceptions; the appellee did not attach a copy of the “draft” petition attached to the cover letter.) In any event, the entirety of Miller’s PCF Complaint is not in the record on appeal, save for the copy attached to the appellee’s brief. If Crescent City had reviewed the record designated on appeal and found a portion missing, it had the duty to require that the record be supplemented. See La. C.C.P. art. 2128.

The record on appeal does not reflect that the trial court made a comparison of Miller’s PCF Complaint and the Filed Petition of 1 June 2007, evidenced by the absence of the entirety of Miller’s PCF Complaint in the record on appeal. Further, the trial court did not review the submissions by the parties to the medical review panel. One must thus of necessity, based upon the specific assignment of error of Miller made to this court, conclude that the trial court erred in granting the dilatory exception of prematurity because the trial court did not have before it any evidence to compare the Filed Petition of 1 June 2007 to anything except the cover letter portion of Miller’s PCF Compliant.

| f¡A court of appeal is a court of record, which must limit its review to evidence in the record before it. La. C.C.P. art. 2164. The courts of this state have consistently held that attachments to briefs are not parts of the record on appeal and cannot be considered by the court in resolving issues on appeal. Some of these cases, which are too numerous to list, arising from the Louisiana Supreme Court and five circuit courts of appeal are: Board of Directors of Industrial Development Bd. of City of New Orleans v. All Taxpayers, Property Owners, Citizens of the City of New Orleans, 03-0826, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 740, 744; Littlejohn v. Quiram, 01-0075, pp. 2-3 (La.App. 4 Cir. 10/24/01), 800 So.2d 73, 74; Dolese v. Harvey, 94-1763, p. 2 n. 1(La.App. 4 Cir. 1/19/95), 649 So.2d 100, 101; Tayco Const. Co., Inc. v. La. Cuisine Restaurant, Inc., 593 So.2d 954, 955 (La.App. 4th Cir.1992); Bordes v. Simplex Mfg. Co., 537 So.2d 1217 (La.App. 4th Cir.1989); Tenneco Oil Co. v. Chicago Bridge & Iron Co., 495 So.2d 1317, 1323 (La.App. 4th Cir.1986); Titlesite, L.C. v. Webb, 36,437, pp. 12-13 (La.App. 2 Cir. 12/11/02), 833 So.2d 1061, 1068-69; Murray v. Town of Mansura, 06-355, pp. 17-18 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, 844; Louisiana Offshore Properties, Inc. v. Manti Resources, Inc., 99-1088, pp. 5-6 (La.App. 3 Cir. 12/29/99), 755 So.2d 988, 992-93; Hover v. Farber, 05-613, pp. 3-4 (La.App. 5 Cir. 1/31/06), 922 So.2d 637, 638; Our Lady of the Lake Hosp. v. Vanner, 95-0754, p. 4 (La.App. 1 Cir. 12/15/95), 669 So.2d 463, 465; Martin v. Comm-Care Corp., 37,600, p. 6 (La.App. 2 Cir. 10/16/03), 859 So.2d 217, 221; State in the Interest of Solomon, 95-0638, p. 6 (La.App. 4 Cir. 3/27/96), 672 So.2d 1039, 1042; Tranum v. Hebert, 581 So.2d 1023, 1026-27 (La.App. 1st Cir.1991); Dawson v. Cintas Corp., 97-2275, p. 3 (La.App. 1 Cir. 6/29/98), 715 So.2d 165, 167; Augustus v. St. Mary Parish School Board, 95-2498, p. 16 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1156; Reed v. Peoples State Bank of Many, 36, 531, p. 5 (La.App. 2 Cir. 3/05/03), 839 So.2d 955, 958; Cajun Elec. Power Co-op. v. Owens-Corning Fiberglass Corp., 580 So.2d 465, 466 (La.App. 5th Cir.1991); Robertson Roofing & Siding, Inc. v. Greenberg, 96-107, p. 4 (La.App. 5th Cir.5/28/96), 693 So.2d 158, 159; Capitol Drilling Co. v. Graves, 496 So.2d 487, 489 (La.App. 1st Cir.1986); Fred H. Moran Construction Corporation v. Elnaggar, 441 So.2d 260, 264 (La.App. 1st Cir.1983); Miller v. Grand Casino Coushatta, 02-468, p. 3 (La.App. 3 Cir. 10/30/02), 829 So.2d 1113, 1115; City of New Orleans v. DiBenedetto, 144 So.2d 558, 560 (La.App. 4th Cir.1962); Chase v. Davis, 20 La. Ann. 201, 201 (La.1868); Boes Iron Works, Inc. v. Travelers Cas. and Sur. Co. of America, 05-782, p. 6 (La.App. 5 Cir. 3/28/06), 927 So.2d 553, 556; Caldwell v. State ex rel. Dept. of Social Services, Office of Community Services, 07-890, p. 6 (La.App. 5 Cir. 5/27/08), 991 So.2d 546, 549; Olson v. Olson, 04-1137, p. 5 (La.App. 5 Cir. 3/1/05), 900 So.2d 52, 55; Barrois v. Wal-Mart Stores, Inc., 97-636, pp. 3-4. (La.App. 5 Cir. 11/25/97), 703 So.2d 798, 799; Vallo v. Gayle Oil Co., Inc., 94-1238, pp. 7-8 (La.11/30/94), 646 So.2d 859, 864-65; Smith v. Willard, 97-1772, p. 5 (La.App. 4 Cir. 3/11/98), 711 So.2d 723, 726; Bustamente v. Jefferson Parish Inspection & Code Enforcement, 96-320, p. 7 (La.App. 5 Cir. 10/1/96), 683 So.2d 822, 826; Williams v. State, Dept. of Health and Hospitals, 95-0713, p. 5 (La.1/26/96), 671 So.2d 899, 902; Reeder v. North, 97-0239, p. 14 (La.10/21/97), 701 So.2d 1291, 1299; M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-0450, p. 1 (La.4/27/07), 956 So.2d 573, 574; Unwired Telcom Corp. v. Parish of Calcasieu, 03-0732, pp. 7-8 (La.1/19/05), 903 So.2d 392, 399; Murphy v. Boeing Petroleum Services, Inc., 600 So.2d 823, 827, n. 1 (La. App. 3rd Cir.1992); Williamson v. CIG- NA/Insurance Co. of N. Am., 576 So.2d 1185, 1188 (La.App. 3rd Cir.1991); Petroleum Helicopters, Inc. v. General Motors Corp., 561 So.2d 203, 206 (La.App. 3rd Cir.1990); Jeanmarie v. Butler, 05-1439, p. 2 (La.App. 4 Cir. 10/11/06), 942 So.2d 578, 579; Holmes v. LSU/E.A. Conway Medical Center, 43,662, p. 10 (La.App. 2 Cir. 10/22/08), 997 So.2d 605, 612; Meaux v. Galtier, 07-2474, p. 2 (La.1/25/08), 972 So.2d 1137, 1138; Bouterie v. Crane, 604 So.2d 1051, 1052 (La.App. 5th Cir.1992), reversed on other grounds, 616 So.2d 657 (La.1993); Urban Management Corp. v. Shreveport Airport Authority, 602 So.2d 1055, 1056 (La.App. 2nd Cir.1992); In re Succession of McKay, 05-603, p. 4 (La.App. 3 Cir. 1/2/06), 921 So.2d 1219, 1222;Chinn v. Mitchell, 98-1060, p. 5 (La.App. 1 Cir. 5/14/99), 734 So.2d 1263, 1267; In re Medical Review Panel of Harris, 97-1970, p. 4 (La.App. 1 Cir. 9/25/98), 725 So.2d 7, 9; Rodgers v. James River II, Inc., 94-1807, p. 5 (La.App. 4 Cir. 9/28/95), 661 So.2d 173, 176; Reed v. Reed, 05-0375, p. 1 (La.3/24/05), 897 So.2d 584, 585; State v. Hatton, 07-2377, p. 19 (La.7/1/08), 985 So.2d 709, 722; Hillman v. Akins, 93-0631, p. 5 (La.1/14/94), 631 So.2d 1, 5; Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112, p. 3 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1261; Arrington v. Galen-Med., Inc., 04-1235, p. 2 (La.App. 3 Cir. 7/6/07), 970 So.2d 540, 542; Reno v. Scafco, L.L.C., 03-1232, p. 6 (La.App. 3 Cir. 3/3/04), 870 So.2d 311, 314; Billieson v. City of New Orleans, 04-2774, pp. 1-2 (La.1/28/05), 893 So.2d 867; Basco v. Dorthy R. Racine Trucking, Inc., 97-2740, p. 7 (La.App. 1 Cir. 12/28/98), 725 So.2d 606, 609; Barabay Property Holding Corp. v. Boh Bros. Const. Co., LLC, 07-2005, p. 6 (La.App. 1 Cir. 5/2/08), 991 So.2d 74, 78; Levron v. State Through Dept. of Health & Hospitals, 94-2094, pp. 15-16 (La.App. 4 Cir. 4/24/96), 673 So.2d 279, 290; Abuan ex rel. Valdez v. Smedvig Tankships, Ltd, 00—1120, p. 6 (La.App. 4 Cir. 4/11/01), 786 So.2d 827, 832; Johnson v. Aymond, 97-1466, p. 5 (La.App. 3 Cir. 4/1/98), 709 So.2d 1072, 1075; Strickland v. Doyle, 05-11, pp. 5-6 (La.App. 3 Cir. 4/6/05), 899 So.2d 849, 853; Leday v. Safeway Ins. Co. of La., 04-610, p. 9 (La.App. 3 Cir. 11/17/04), 888 So.2d 1084, 1090; C & B Sales & Service, Inc. v. Slaughter, 04-551, pp. 5-6 (La.App. 3 Cir. 10/20/04), 885 So.2d 683, 686-687; Distefano v. B & P Const., Inc., 04-25, p. 5 (La.App. 5 Cir. 5/26/04), 874 So.2d 407, 411; Gray v. Crocker, 37,683, p. 2, fn. 2 (La.App. 2 Cir. 9/24/03), 855 So.2d 842, 843; Strong v. Interkraft Corp., 37,427, pp, 5-6 (La.App. 2 Cir. 6/25/03), 850 So.2d 891, 894; State v. Quantex Microsystems, Inc., 00-0307, p. 5 (La.App. 1 Cir. 7/3/01), 809 So.2d 246, 249; Ford Motor Credit Co. v. Brown, 32,995, pp. 4-5 (La.App. 2 Cir. 4/5/00), 756 So.2d 654, 658; State ex rel. R.C. v. Clarke, 33,023, p. 7 (La.App. 2 Cir. 10/27/99), 743 So.2d 843, 848; Hughes v. Olive Garden Italian Restaurant, 31,939, pp. 6-7 (La.App. 2 Cir. 5/5/99), 731 So.2d 1076, 1080; LaFleur v. Entergy, Inc., 98-344, p. 13 (La.App. 3 Cir. 12/9/98), 737 So.2d 761, 768; South Central Bell v. Milton J. Womack & Associates, Inc., 97-2413, p. 3 (La.App. 1 Cir. 11/6/98), 744 So.2d 635, 637; State in Interest of H.D., 98-0953, p. 7 n. 1 (La.App. 4 Cir. 11/4/98), 721 So.2d 1045, 1048 n. 1; Guarantee Systems Const. & Restoration, Inc. v. Anthony, 97-1877, p. 14 (La.App. 1 Cir. 9/25/98), 728 So.2d 398, 405; J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 8 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 201; Lewis v. Texaco Exploration and Production Co., Inc., 96-1458, p. 7 (La.App. 1 Cir. 7/30/97), 698 So.2d 1001, 1008; Rhodes v. Executive Risk Consultants, Inc., 26,021, p. 5 (La.App. 2 Cir. 8/17/94), 642 So.2d 269, 273; Oswalt v. State, Dept. of Transp. and Development, 93-850, p. 11 (La.App. 3 Cir. 3/30/94), 640 So.2d 388, 395; Haskins v. State Farm Fire & Cas. Co., 612 So.2d 990, 992 (La.App. 2nd Cir.1993); D'Arbonne Bank & Trust Co. v. James, 597 So.2d 165, 166-67 (La.App. 2nd Cir.1992); Willis v. Letulle, 597 So.2d 456, 464 (La.App. 1st Cir.1992); Thibert v. Smith, 560 So.2d 553, 555, n. 3 (La.App. 1st Cir.1990); Younce v. Pacific Gulf Marine, Inc., 07-421, p. 25 (La.App. 5 Cir. 1/22/08), 977 So.2d 117, 134; Perkins v. Fontenot, 548 So.2d 369, 371 (La.App. 3rd Cir.1989); Succession of Lavergne, 129 La. 119, 55 So. 734, 735 (La.1911); Thibodeaux v. Landry, 553 So.2d 1083, 1085 (La.App. 3rd Cir.1989); Pinegar v. Harris, 06-2489, pp. 2-3 (La.App. 1 Cir. 5/4/07), 961 So.2d 1246, 1249; Dawson v. Cintas Corp., 97-2275, p. 3 (La.App. 1 Cir. 6/29/98), 715 So.2d 165, 167; J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 8 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 201; Ledet v. National Car Rental System, Inc., 96-1270, p. 3 (La.App. 3 Cir. 6/4/97), 694 So.2d 1236, 1238; Lalena v. Municipal Fire and Police Civil Service Bd., 27,244, p. 1 (La.App. 2 Cir. 9/27/95), 661 So.2d 520, 521-22; Brown v. Brown, 595 So.2d 337, 338 (La.App. 2nd Cir.1992); Shepherd v. City of Baton Rouge/Parish of East Baton Rouge, 588 So.2d 1210, 1211 n. 2 (La.App. 1st Cir. 1991); Graham v. Young, 43 So.2d 297, 298 (La.App. 2nd Cir.1949); A. Baldwin & Co. v. Belong, 151 So. 132, 132 (La.App.1933); Smith v. Henderson, 9 La.App. 425, 429, 121 So. 227 (La.App. 2nd Cir.1928); Board of Commissioners v. Louisiana Commission on Ethics, 416 So.2d 231, 238 (La.App. 1st Cir.1982); United General Title Insurance Company v. Casey Title, Ltd, 01-600, p. 7 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065; Augustus v. St. Mary School Board, 95-2498, p. 16 (La. App. 1 Cir. 6/28/96), 676 So. 1144, 1156; Norton v. Thome, 446 So.2d 972, 974 (La.App. 3rd Cir.1984); Louisiana Business College v. Crump, 474 So.2d 1366, 1369 (La.App. 2nd Cir.1985); Driscoll v. City of New Orleans, 444 So.2d 756, 757 (La.App. 4th Cir.1984); Chapa v. Chapa, 471 So.2d 986, 987-88 (La.App. 1st Cir.1985);; National American Bank of New Orleans v. Purvis, 407 So.2d 754, 757 (La.App. 1st Cir.1981); City of Slidell v. Primo Enterprises, Inc., 542 So.2d 121, 122 (La.App. 1st Cir.1989).

What the majority does is silently overrule a well-established rule of jurisprudence respecting documents attached to briefs that were not introduced in evidence or made part of the formal record on appeal.

One may now presume that the rule of this circuit is that anything a party attaches to his, her, or its brief may be considered by a panel of this court, regardless of whether it appears in the record on appeal and was or was not introduced in the trial court. One would refer to this new procedural rule in the eighteenth century as flummery, in the nineteenth century as humbug, in the twentieth century as bunk, and by some other term in the twenty-first century.

It appears the majority is trying to say that they don’t care anything about the specifics of what was presented to the medical review panel. The medical review panel received a submission from each party and rendered a decision. Ergo, they considered everything about which Miller was complaining. This is pure speculation not based upon any evidence because neither the trial court nor this court knows from the record on appeal (a) what the medical review panel specifically held (due to the absence of the opinion of the panel), (b) the absence of the submissions to the medical review panel, and (c) the absence of the “draft” petition portion of Miller’s PCF Complaint.

I, therefore, would set aside that portion of the judgment relating to the exception of prematurity and remand the matter to the trial court to again rule upon the exception of prematurity based upon a review of evidence that the parties properly introduce, the entirety of Miller’s PCF Complaint, and the Filed Petition |12of 1 June 2007 (assuming the latter two are properly introduced into evidence). Our procedural law requires nothing less because that is precisely Miller’s assignment of error.

GORBATY, J.,

concurs in part and dissents in part with reasons.

hi respectfully concur in the majority’s ruling that the peremptory exception of prescription filed by the defendant/appel-lee, Crescent City Health Services (“Crescent City”), was properly sustained by the trial court. However, I respectfully dissent from the majority’s ruling that overrules Crescent City’s dilatory exception of prematurity.

BELSOME, J.,

concurs with reasons.

hThe record does not evidence that additional medical malpractice claims were asserted. Consequently, the trial court erred in granting the exception of prematurity. I respectfully concur.

      . Although a copy of the medical review panel's opinion is not included in the record on appeal, Crescent City acknowledged in its answer and in its memorandum in support of its exceptions that this matter proceeded to a medical review panel which unanimously found that there was no breach of the applicable standard of care.

      . In its written reasons for judgment, the trial court reasoned that it was without authority to rule on whether the newly asserted medical malpractice claims were prescribed pursuant to La. R.S. 9:5628. It further reasoned that "[w]hen the panel request is filed, the health care provider can assert a prescription exception in a court of competent jurisdiction and proper venue at any time without regard to whether the medical review panel process is complete.” Finally, the trial court noted that it could not entertain a prescription exception as to those newly asserted medical malpractice claims until a new medical review panel is requested. Given our finding that the trial court erred in sustaining the exception of prematurity, we find it necessary to remand for the trial court to address these claims, which it declined to consider.

      . After Mr. Miller's motion for appeal was granted, Crescent City filed a motion for summary judgment. Although the trial court granted that motion, the trial court's ruling on that motion is not before us on this appeal.

      . Crescent City invites this court on appeal to find that any and all claims that were not presented to the medical review panel do not relate back and have prescribed. We decline to reach the issue of prescription as to the newly asserted medical malpractice claims. Rather, we find it appropriate to remand for the trial court to address these claims, which we find are not premature.

      . La. R.S. 40:1299.47(A)(1) provides that:
      A. (l)(a) All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section. The filing of a request for review by a medical review panel as provided for in this Section shall not be reportable by any health care provider, the Louisiana Patient's Compensation Fund, or any other entity to the Louisiana State Board of Medical Examiners, to any licensing authority, committee, or board of any other state, or to any credentialing or similar agency, committee, or board of any clinic, hospital, health insurer, or managed care company.

      . La. R.S. 40:1299.47 A.(l)(b) provides that at a minimum, the request for review of a malpractice claim must contain all of the following:
      (i) A request for the formation of a medical review panel.
      (ii) The name of the patient.
      (iii) The names of the claimants.
      (iv) The names of defendant health care providers.
      (v) The dates of the alleged malpractice.
      (vi) A brief description of the alleged malpractice as to each named defendant health care provider.
      (vii) A brief description of alleged injuries.

      . La. R.S. 40:1299.47(G) provides:
      The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions:
      (1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
      (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
      (3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
      (4) When Paragraph (1) of this subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.

      . The Perritt case involved three separate medical malpractice claims pending before medical review panels. In each of those cases, the health care providers asserted that the claimants had failed to provide sufficient notice in their request for review of the material facts. The Court in Perritt held that the health care providers could not compel the claimants to respond to interrogatories requesting information on the standard of care. The Court further held that the health care providers could not file an exception of no cause of action or vagueness during the time the claim was before the medical review panel. Citing La. R.S. 40:1299.47(B)(2)(a), the Court found that the only exception permitted to be filed during the course of the medical review panel proceeding is a peremptory exception of prescription.

      . The formal written decision of the medical review panel is not part of the record on appeal. Accordingly, I assume that the complaint consists of (1) Miller’s counsel's cover letter and (2) the draft petition attached thereto, all as explained in greater detail, infra.

      . I understand these to include the allegations of breach of fiduciary duty and unfair trade practices.

      . After Miller's motion for appeal was granted, Crescent City filed a motion for summary judgment that was granted by the trial court. Matters relating to the summary judgment are not before us.

      . The assertion of unfair trade practices by Miller alleges false, misleading, and deceptive representations as to the quality of care provided by Crescent City. La. R.S. 40:1299.41 A(8), as it read at the time of the alleged acts and omissions of Crescent City, defines malpractice as:
      “[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.”

      . La. C.C.P. art. 2128 states:
      The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution. However, within three days, exclusive of holidays, after taking the appeal the appellant may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal. Within five days, exclusive of holidays, after service of a copy of this designation on the other party, that party may also designate in a writing filed with the trial court such other portions of the record as he considers necessary. In such cases the clerk shall prepare the record on appeal as so directed, but a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record. When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court.

      . Of necessity, the majority had to consider the attachment to the appellee's brief of the draft petition attached to Miller’s PCF Complaint, which is not part of the record on appeal, in order to reach the conclusion that it does. If the majority did not, then the majority must have powers that this writer does not possess.

      . Louisiana Supreme Court opinions are set forth in boldface.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Coty KIRKPATRICK, Appellant.
    Nos. 44,710-KA, 44,711-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   GASKINS, J.

liThe defendant, Coty Kirkpatrick, pled guilty to creation or operation of a clandestine laboratory for the unlawful manufacture of methamphetamine with intent to distribute, and possession of marijuana with intent to distribute, pursuant to a plea agreement that included a sentencing cap of 15 years and the understanding that the sentences for these two offenses would be served concurrently. The state also agreed to dismiss several other charges against the defendant and refrain from seeking any enhancement of sentence as a multiple offender. In accordance with the agreement and the sentencing cap, the defendant was sentenced to serve 15 years at hard labor on each count, with the sentences to be served concurrently. This appeal followed. Seeking to withdraw, the defendant’s appellate counsel filed an An-ders/Benjamin brief in this court, which alleged that she could find no nonfrivolous issues to raise on appeal. For the following reasons, we grant the motion to withdraw and affirm the defendant’s convictions and sentences.

FACTS

The defendant was charged by bill of information with creation or operation of a clandestine laboratory for the unlawful manufacture of a Schedule II controlled dangerous substance, namely methamphetamine, with intent to distribute, contrary to La. R.S. 40:988. In a separate case, the defendant was charged by bill of information with possession of a Schedule I controlled dangerous substance, namely marijuana, with intent to distribute, contrary to La. R.S. 40:966(A)(1). Pursuant to a plea agreement, |2the defendant pled guilty as charged to the these two offenses. In exchange, the state agreed to a sentencing cap of 15 years, with the sentences for these two offenses to be served concurrently. The state also agreed not to charge the defendant as a multiple offender, and at least eight other charges pending against the defendant were dismissed. The terms of the plea agreement were made part of the record and the defendant expressly agreed to them.

The factual basis for the guilty plea to creation or operation of a clandestine laboratory for the unlawful manufacture of methamphetamine with intent to distribute, was stated by the prosecution on the record at the guilty plea hearing. According to the prosecution, during a four-month undercover narcotics investigation, the defendant was observed purchasing a large quantity of pseudoephedrine tablets from various establishments in Webster Parish. On or about the date of this offense, July 2, 2008, the vehicle in which the defendant was riding was pulled over. Officers located two boxes of Sudafed on both the defendant and another subject, as well as methamphetamine, plastic tubing, and rock salt. Law enforcement officers learned that the defendant and his accomplice planned on manufacturing some methamphetamine on the night of the arrest.

Regarding the charge of possession of marijuana with intent to distribute, the prosecution stated that on September 30, 2007, after an investigation, law enforcement officers found the defendant to be in possession of a quantity of marijuana sufficient to indicate an intent to |sdistribute. The substance was tested by the North Louisiana Criminalistics Laboratory and determined to contain marijuana.

After advising the defendant of the rights waived by pleading guilty and placing on the record the specific factors of the plea agreement, the trial court accepted the defendant’s plea of guilty to these two charges. The trial court ordered a presen-tence investigation report. At the sentencing hearing, the defendant was ordered to serve 15 years at hard labor on each offense, with the sentences to run concurrently, in compliance with the sentencing cap. The defendant was also recommended for the Blue Walters treatment program while incarcerated. The defendant filed a motion to reconsider sentence, which was untimely. However, the trial court denied the motion.

Anders Brief

The defendant appealed. The defendant’s appellate counsel filed a motion to withdraw, together with an Anders brief, which alleges that she could not find any nonfrivolous issue to raise on appeal. See Anders v. California, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, supra. The brief outlined the procedural history of the case and the recitation of facts presented during the guilty plea hearing. The brief also contained “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Jyles, supra. Defense counsel further verified that she mailed copies of the motion to withdraw and her brief to the defendant, in accordance with the Anders, Jyles, Mouton, and Benjamin cases.

|4The state filed a letter eonem'ring that there are not any nonfrivolous issues to raise on appeal. On June 11, 2009, this court rescinded the previously fixed pro se briefing deadline and notified the defendant that he could file a brief in this appeal within 30 days of the order and request to view the appellate record within 10 days of the date of the order. The defendant has not requested the record or filed a brief.

This court has conducted an error patent review of the appellate record and no errors patent were found. The bill of information and arraignment were correctly done. There were no errors patent found in the guilty plea or sentencing proceedings. The convictions are fully supported by the factual bases stated on the record by the assistant district attorney. See La. C. Cr. P. art. 894.1. The defendant was sentenced within the sentencing cap. Where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, such as in the case sub judice, a sentence imposed within the agreed range cannot be appealed as excessive. State v. Smith, 39,719 (La.App. 2d Cir.5/11/05), 903 So.2d 598. See also La. C. Cr. P. art. 881.2 and State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. McQuarters, 44,074 (La.App. 2d Cir.4/8/09), 8 So.3d 822. Furthermore, the record supports the imposition of the agreed sentence of 15 years at hard labor for each of these convictions, to be served concurrently.

CONCLUSION

Based upon the reasons stated above, we find that there are not any nonfrivolous issues to raise on appeal; we also find no errors patent. | .^Consequently, the motion to -withdraw filed by the defendant’s appellate counsel is granted, and the defendant’s convictions and sentences are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTIONS AND SENTENCES AFFIRMED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).


author: PEATROSS, J.

text:
    Rufus WHITE, Plaintiff-Appellee v. COUNTY MARKET, Defendant-Appellant.
    No. 44,699-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P., by Robert A. Dunkelman, Shreveport, for Appellant.
    Fischer & Associates, by William T. Allison, for Appellee.

      Before STEWART, PEATROSS & MOORE, JJ.
   PEATROSS, J.

|! After a trial on the merits in this workers’ compensation case, the Workers’ Compensation Judge (“WCJ”) held in favor of the claimant, Rufus White, awarding him supplemental earnings benefits (“SEBs”), attorney fees of $8,000, penalties of $10,750 and court costs. In his reasons for judgment, the WCJ stated that County Market failed to carry its burden of proving that it made a suitable job offer to Mr. White after he proved his disability and inability to return to work due to his work-related injury. This appeal ensued. For the reasons stated herein, we affirm in part and reverse in part.

FACTS

Claimant, Mr. White, was injured in a work-related accident on November 1, 2005, when he fell while standing on a cart stocking spices. Mr. White suffered injuries to his back, which were diagnosed as mild central disc protrusion and disk fragmentation. His treating physician, Dr. Ryan Bicknell, recommended that he undergo surgery for his back injury.

Mr. White then sought another medical opinion from Dr. Donald Smith, who agreed with Dr. Bicknell that Mr. White should undergo surgery. Dr. Smith also noted, however, that Mr. White was reluctant to undergo surgical procedures. Consequently, Dr. Smith submitted a Work Status Report to Mr. White’s employer, County Market, which stated that Mr. White could return to work with no restrictions if he could tolerate doing so; otherwise, he recommended surgery. Mr. White’s treating | ^physician, Dr. Bicknell, agreed with Dr. Smith’s recommendations in the Work Status Report.

Mr. White then sought a third medical opinion from Dr. Anil Nanda. After evaluating Mr. White, Dr. Nanda suggested additional physical therapy, daily stretching and weight management with the caveat that he recommended surgery if Mr. White’s pain continued. On receiving these medical opinions, Mr. White opted not to undergo surgery.

In September 2006, Mr. White’s case manager contacted Dr. Bicknell and requested specific work restrictions so that County Market could make the appropriate accommodations so that Mr. White could return to work. Dr. Bicknell indicated light duty restrictions, specifically that Mr. White should not lift over 5-10 pounds, should not bend or kneel and should be permitted to change positions frequently.

After receiving notice of these restrictions, Mr. Jeff Chitwood, Risk Manager for County Market, made a written offer of employment to Mr. White. The letter stated that County Market was aware that Mr. White had been released by his physician to return to work full duty; however, County Market was willing to return Mr. White to a light duty position on a “short temporary basis.” The letter further stated that Mr. White should report for work on October 9, 2006, and should contact Mr. Chitwood with any questions.

When Mr. White received the letter from Mr. Chitwood offering employment, he did not accept the offer, nor did he contact Mr. Chitwood to discuss the offer. At trial, Mr. White testified that he was confused and |aupset by the letter and did not want to call Mr. Chitwood because he figured it was a “lost cause.” Mr. White did not report for duty on October 9, 2006; and, consequently, County Market terminated Mr. White’s indemnity benefits. Mr. White then filed a disputed claim for benefits in November 2006. Within a cou-pie of weeks, the matter proceeded to trial. As previously stated, the WCJ rendered a judgment in favor of Mr. White, awarding him SEBs, penalties, attorney fees and court costs.

County Market now appeals.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129. On review, an appellate court may not set aside the findings of fact by the trial court unless those findings are clearly wrong or manifestly erroneous. Smith, supra; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the fact finder’s conclusion was reasonable. Stobart, supra.

In order to reverse a fact finder’s determination, an appellate court must review the record in its entirety and (1) find that a reasonable factual |4basis does not exist for the finding and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Stobart, supra. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

In its first assignment of error, County Market argues that Mr. White was not entitled to an award of SEBs. According to County Market, it was willing to make all necessary accommodations for Mr. White to return to work and did so within the restrictions indicated by Mr. White’s physician. County Market contends that, after it made a suitable job offer to Mr. White, it was his burden to prove that he could not perform the job that had been offered to him. According to County Market, since Mr. White did not contact County Market after the initial job offer or submit any evidence that he was not capable of performing the job offered by County Market, he faded to carry this burden.

Supplemental earnings benefits are available to an employee who is able to prove, by a preponderance of the evidence, that a work-related injury has rendered the person unable to earn at least 90% of pre-accident wages. See La. R.S. 23:1021(1), (8)(a); 23:1221(3)(c); Banks, supra; Gilley v. Reeves Deli Mart, 30,355 (La.App. 2d Cir.4/8/98), 711 So.2d 328; Glascock v. Georgia-Pacific Corp., 25,677 (La.App. 2d Cir.3/30/94), 635 So.2d 474; Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2d Cir.1991). The purpose of such an award is to compensate an injured employee for the wage earning capacity lost as a result of the accident. Banks, supra; Gilley, supra; Glascock, supra. Once the claimant establishes a prima facie case, the burden shifts to the employer to show that employment is generally available within the claimant’s physical capabilities and in his or the employer’s reasonable geographic region. Banks, supra; Gilley, supra; Romero v. Grey Wolf Drilling Co., 594 So.2d 1008 (La.App. 3d Cir.1992).

An employer discharges its burden of proving job availability by establishing, at a minimum, the following: (1) the existence of a suitable job within the claimant’s physical capabilities and within the claimant’s or the employer’s community or reasonable geographic region; (2) the amount of wages that an employee with the claimant’s experience and training can be expected to earn in that job; and (3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence. Banks, supra; Gilley, supra. Actual job placement, or even an offer of employment, however, is not necessary to prove the availability of employment. Banks, supra; Gilley, supra; Mayeux v. Kentucky Fried Chicken, 28,163 (La.App. 2d Cir.4/3/96), 671 So.2d 1261, writ denied, 96-1133 (La.6/7/96), 674 So.2d 966; Romero, supra.

| (;If the employer’s burden is met, then the employee must show by clear and convincing evidence, without any presumption of disability, that he is unable to perform the available employment solely as a consequence of substantial pain. See La. R.S. 23:1221(3)(c)(ii); Gilley, supra.

A review of Mr. White’s medical records reveals the severity of his back injury that resulted from the work-related accident in November 2005. All three of Mr. White’s physicians recommended back surgery as the ultimate solution to his injuries, which were diagnosed as mild central disc pro-trusión and disc fragmentation. Furthermore, while Mr. White’s physicians recommended his release to work with some restrictions, they further stipulated that the release would only be applicable as long as Mr. White could tolerate the pain resulting from his back injury. None of Mr. White’s physicians could predict how long Mr. White would be able to tolerate the pain from his injuries or how severe his pain might become.

In addition, as Mr. White’s medical records indicate, and as he testified at trial, he experiences constant pain in his back, pelvis and legs, intermixed with tingling and numbness, which varies in severity from day to day. Mr. White testified that some days he has trouble performing minor tasks, such as tightening his bed sheets to make his bed. Other days, the pain may be less severe, but it never totally ceases and the patterns of his pain appear to be difficult to predict.

Furthermore, Mr. White testified that he knew the limitations of his own body, given his injuries, and that he would not be able to perform the duties required of him as the assistant manager of the store where he 17worked. Mr. White testified in detail about the lifting, stooping, squatting and standing requirements of the County Market assistant manager, the knowledge of which Mr. White gained from his 20-plus years of experience working for the store.

Considering Mr. White’s medical records, and his testimony regarding his pain, injuries and the extent of his job duties, all of which was found to be credible by the WCJ, we find no error in the WCJ’s finding that Mr. White proved his inability to return to the job held at the time of his injury.

In regard to the issue of whether or not County Market discharged its burden of proving that it made a suitable job offer, we find a somewhat puzzling letter offering employment to Mr. White, in which Mr. Chitwood stated that, although Mr. White’s physician had released him to work full duty, County Market was offering Mr. White a light duty position on a “short temporary basis.” As pointed out by the WCJ, and as our review of Mr. White’s medical records reveals, Mr. White was not, in fact, released by his physicians to work full duty. Instead, Dr. Bicknell indicated that Mr. White’s work release was with light duty restrictions, specifically stating that he should not lift over 5-10 lbs., should not bend or kneel and should be permitted to change positions frequently-

Additionally, County Market’s offer of a light duty position, as referenced in Mr. Chitwood’s letter to Mr. White, restricts the offer to a “short temporary basis.” Mr. Chitwood testified at trial that he included this limitation on the offer of employment to allow County Market time to | (¡determine if Mr. White could adequately perform his job duties once he returned to work. If Mr. White was unable to perform these duties, he would be expected to undergo the surgical procedure recommended by his physicians. Later at trial, when pressed by opposing counsel, Mr. Chitwood clarified that, contrary to the wording in the letter, should Mr. White have chosen not to undergo surgery, County Market would have allowed him to work at the store indefinitely in a light duty position.

Given the inaccuracy of County Market’s assessment of Mr. White’s work release restrictions as indicated in the letter, the ambiguous, vague and temporary nature of the job offer, as well as the contradictory testimony of Mr. Chitwood in purported explanation of the letter’s “true meaning,” we find no manifest error in the WCJ’s finding that the letter did not constitute a suitable offer of employment. Accordingly, we find Appellant’s first assignment of error to be without merit.

In its second assignment of error, County Market asserts that, if this court should find that the letter did not constitute a suitable job offer, Mr. White would still not be entitled to penalties and attorney fees because the offer made to him was made in good faith; and, therefore, County Market’s actions did not rise to the level of arbitrariness or capriciousness.

The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact and, therefore, subject to the same manifest error standard of review. Farmer v. R.A.S. Management Co., Inc., 42,306 (La.App. 2d Cir.6/20/07), 960 So.2d 1240; Oliveaux v. Riverside Nursing Home, 29,419 (La.App. 2d Cir.4/2/97), 691 So.2d 340; Bradley v. Justiss Oil Co., Inc., 618 So.2d 646 (La.App. 2d Cir.1993).

La. R.S. 23:1201 states in pertinent part:

I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(0 shall be applicable to claims arising under this Chapter.

Whether a reduction or termination of workers’ compensation benefits is without probable cause, so as to render the employer liable for attorney fees and penalties, depends primarily on the facts known by the employer at the time of the termination of benefits. Oliveaux, supra. When a reduction or termination is based on legitimate disputes as to extent or cause of the claimant’s disability, penalties and attorney fees will not be awarded. Oliveaux, supra; Bradley, supra.

Given the facts known to County Market at the time Mr. White’s benefits were suspended, we cannot conclude that the termination of those benefits rose to the level of being arbitrary and capricious. As previously stated, Mr. White’s physicians only released Mr. White to return to work, with limitations, should he be able to tolerate the pain. It was recommended that Mr. White undergo a surgical procedure to remedy his back injuries; however, Mr. White chose not to do so. After offering to Mr. White what County Market believed to be a suitable offer of employment, Mr. White did hnnot respond to the offer, nor did he show up for work. Accordingly, we find that County Market had probable cause to terminate Mr. White’s benefits, particularly given the facts and information available to it at that time. Consequently, the decision of County Market to do so did not rise to the level of being arbitrary or capricious. Accordingly, we reverse the WCJ’s award of penalties, attorney fees and court costs to be assessed against County Market.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ awarding SEBs pursuant to La. R.S. 23:1221 is affirmed. The portion of the judgment of the WCJ awarding penalties, attorney fees and court costs to be assessed against County Market is reversed. Costs of this appeal are assessed to County Market.

AFFIRMED IN PART and REVERSED IN PART.

      . We are unpersuaded by appellant’s argument that the appropriate standard of review in this case is de novo review.


author: BROWN, Chief Judge.

text:
    BANK OF AMERICA, N.A., as Trustee of The Griffith Family Trust, Plaintiffs-Appellees v. Wilma Juanita CLOWER, Janet Lee Thompson, and Larry Gene Clower, Defendants-Appellants.
    No. 44,749-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.
    Writ Denied Jan. 8, 2010.

      Pesnell Law Firm by Billy R. Pesnell, Kathryn Sue Bloomfield, Shreveport, for Appellants.
    Newell & Newell by Daniel W. Newell, Homer, for Appellees.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

| defendant, Larry Gene Clower, an absentee co-owner, appeals from the trial court’s denial of a motion for new trial related to an October 12, 2006, judgment of partition. For the reasons set forth below, we dismiss this appeal as untimely.

Discussion

Larry Clower asserts that the trial court erred in failing to consider his motion for new trial seeking to set aside the October 12, 2006, judgment for partition by licitation based upon the court’s conclusion that the motion was untimely despite the clerk of court’s failure to comply with La. C.C.P. art. 1913.

Bank of America, the co-owner who petitioned for a partition of the co-owned property, which consists of 66.5 acres in Claiborne Parish, Louisiana, asserts that even if proper notice of judgment wasn’t given to Clower, he nonetheless waived his right to such notice by filing a plethora of pleadings in this action, together with an affidavit dated April 10, 2008, to which he attached a copy of the October 12, 2006, judgment, showing his knowledge and receipt of the judgment, months before he actually filed his motion for new trial on November 13, 2008.

Except as otherwise provided in La. C.C.P. art. 4630, if the plaintiff proves on the trial of the proceeding that: (1) he is a co-owner of the property; (2) he is entitled to the partition of the co-owned property; and (3) the defendant is an absentee who owns an interest therein, the court shall prender judgment ordering the public sale of the property ... to effect a partition, after the advertisement required by law for a sale under execution. La. C.C.P. art. 4625. The judgment shall determine the absentee’s share in the sale proceeds, and award a reasonable fee to the attorney appointed to represent him to be paid from the absentee’s share of the proceeds of the sale. Id.

La. C.C.P. art. 1974 provides that the delay for applying for a new trial is seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913. The delay for applying for a new trial is triggered by the actual mailing of notice of judgment or a copy of the judgment. Johnson v. East Carroll Detention Center, 27,075 (La.App. 2d Cir.06/21/95), 658 So.2d 724. If proper notice is never mailed, the delays never start to run. Juengain v. Johnson, 571 So.2d 167 (La.App. 4th Cir.1990); Guaranty Bank & Trust Co. v. Quad Drilling Corp., 284 So.2d 349 (La.App. 1st Cir.1973).

La. C.C.P. art. 1913 provides in pertinent part:

(A) Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.
(D) The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.

Pursuant to allegations and a request made in Bank of America’s petition for partition of the co-owned property, an attorney, Charles Weaver, |3was appointed on July 13, 2006, to represent Larry Clower, an absentee with an ownership interest in the property to be partitioned. La. C.C.P. art. 4623. Weaver was served with the petition for partition on July 18, 2006, on behalf of Clower, and pursuant to La. C.C.P. arts. 5094 and 5095, on July 31, 2006, Weaver sent notice to Clower of (1) the partition action; (2) Weaver’s appointment as Clower’s representative; and (3) Clower’s option to retain the services of an attorney immediately should he wish to dispute the allegations of the partition or defend the action. A certified mail receipt indicates that Clower received this letter on August 7, 2006. Weaver also filed an answer on Clower’s behalf on August 3, 2006, therefore preventing the entry of a default judgment against him. La. C.C.P. art. 5095.

In accordance with La. C.C.P. art. 4624, notice of the proceeding was published in the Claiborne Parish newspaper. A hearing was held on October 12, 2006, three months after the petition was filed and a little more than two months after Clower received notice of the partition action from Weaver, his designated representative. Weaver appeared on Clower’s behalf at the hearing on October 12, 2006. As of that date, Clower had not communicated with Weaver or any other party. Clower did not make an appearance at the hearing, nor did an attorney hired to act on his behalf. As noted by this court in a separate action filed by Clower seeking to annul the sheriffs sale and/or to recover damages arising out of the alleged malpractice of his curator, Weaver, Clower took no action whatsoever after 14being sent notification of the proceedings by Weaver’s July 31, 2006, certified letter. See, Clower v. Bank of America, 44,034 (La.App. 2d Cir.02/25/09), 5 So.3d 983, writ denied, 09-0986 (La.09/08/09), 17 So.3d 960. Bank of America proved its entitlement to judicial partition, and the trial court rendered judgment on October 12, 2006, ordering the partition of the co-owned immovable property, less and except the minerals, and issued a commission to the Claiborne Parish Sheriff to sell the property at public auction, according to law, to effect a partition by licitation of said property. La. C.C.P. art. 4625.

On the date of the hearing on October 12, 2006, after the judgment of partition was rendered, the trial court in open court discharged Charles Weaver from his duties as representative for the nonresident Larry Clower. Therefore, Clower was unrepresented from the date of the hearing and rendition of judgment of partition, October 12, 2006. As such, pursuant to La. C.C.P. art. 1913, Clower, not Charles Weaver, who was no longer Clower’s appointed representative, should have been sent notice of the signing of the judgment of partition by the Claiborne Parish Clerk of Court on October 27, 2006.

On October 16, 2006, the Claiborne Parish Clerk of Court directed the Claiborne Parish Sheriff to sell the property. On November 9, 2006, the clerk issued a “Request for Notice of Sale Date” to the sheriff. On that same date, the sheriff advised the clerk of court of the sale date, December 20, 2006. The sheriff advertised the sale in the Haynesville News on November | s16 and December 14, 2006. On December 20, 2006, the 66.5 acre tract was sold to Bank of America, the sole bidder, for $2,000. On March 16, 2007, Bank of America filed a joint “Petition and Rule to Homologate Partition” with a copy of a March 12, 2007, proces verbal attached. On March 19, 2007, the clerk of court mailed notice of the “Judgment Homolo-gating Partition” to counsel for Bank of America, the two other nonresident co-owners, and Charles Weaver. The notice does not reflect that a copy was mailed to Clower.

Clower’s first appearance in this matter, aside from the curator’s answer filed on his behalf by Charles Weaver, was in the form of a “Petition to Vacate, Annul and Set Aside [the March 16, 2007] Judgment Homologating Partition” which was filed on May 8, 2008. In this petition, Clower asserted that Weaver had no authority to join in the “Petition and Rule for Homolo-gation of Partition” filed on March 16, 2007, or to accept service of any pleadings or judgments on Clower’s behalf after being relieved of his duties as Clower’s curator on October 12, 2006. Also, Clower asserted that his due process rights were violated by his failure to receive notice of the March 16, 2007, judgment homologat-ing partition.

On June 26, 2008, Bank of America filed an ex parte motion and order to vacate the December 20, 2006, sheriffs sale and the March 16, 2007, judgment homologating partition. Bank of America also requested that the clerk of court reissue the commission to sell so that another sale of |fithe property could be scheduled. This order was signed by the trial court on June 26, 2008. In response, Clower filed a “Motion to vacate Ex Parte Order and Recall Commission to Sell” on July 24, 2008, based upon the clerk of court’s failure to send notice of Bank of America’s motion and order to Clower’s attorneys. In this motion, Clower asserted that he had never consented to a partition of the property less and except the minerals, and because the commission to sell issued by the clerk of court described the property to be sold as “LESS, however, all the oil, gas and other minerals therein and thereunder,” the commission to sell should be recalled, vacated and set aside based upon his lack of consent.

On October 2, 2008, Clower filed a “Memorandum in Support of Motion to Vacate Ex Parte Order and Recall Commission to Sell.” In this memorandum, Clower again raised the issue of his lack of consent to the partition of the co-owned property “less and except the minerals.”

Clower’s July 24, 2008, motion, together with a motion to compel discovery filed by Clower, was taken up by the trial court on October 9, 2008, then was denied by the trial court in a judgment signed on November 5, 2008, and filed on November 12, 2008.

Having failed in his attempts to have the commission to sell the property vacated and set aside solely based upon the fact that the property to be partitioned did not include the minerals, Clower filed a motion for new 17trial on November 13, 2008, asserting this very same claim, this time as it pertains to the October 12, 2006, judgment. To get around the issue of the timeliness (or lack thereof) of the motion for new trial, Clower urged that he was not properly served with notice' of the October 12, 2006, judgment as required by La. C.C.P. art. 1913.

We also note that in the annulment of sale/malpractice action filed by Clower on October 12, 2007, he mounted a collateral attack on the partition proceedings and in the alternative, sought damages from Charles Weaver and his law firm for, inter alia, their failure to inform him of the October 12, 2006, judgment for partition by licitation. Basically, Clower sought to have the sale of the property and the judgment homologating partition set aside and annulled, and only if this claim was denied did Clower seek damages arising out of Charles Weaver’s “malpractice.” Clower also filed a “Motion for Partial Summary Judgment” on April 10, 2008, asserting his entitlement to judgment as a matter of law against defendants annulling, vacating and setting aside the judicial sale of the property. Attached to this motion was an affidavit in which Clower asserted, inter alia, his lack of receipt of notice or knowledge of the October 12, 2006, judgment. According to Clower, he did not become aware of this judgment until he retained present counsel. Also attached to his motion for summary judgment was a copy of the October 12, 2006, judgment.

It is certainly disingenuous for Clower to argue that his motion for new trial is timely based upon his lack of notice of the October 12, 2006, judgment when in fact he demonstrates his actual notice of said judgment in |8the numerous pleadings he has filed in this action and the malpractice suit, attacking everything from the sheriffs sale to the proces verbal to the judgment homologating partition to the latest commission to sell issued to the clerk, all which were filed prior to the motion for new trial in which he asserts his lack of official notice of judgment.

As noted by the court in X-L Finance Company v. Hollinger, 185 So.2d 873 (La.App. 3d Cir.1966), one of the principal reasons for the requirement that the clerk of court mail notices of the final judgment is to enable parties to be given notice of the judgment so they may timely move for a new trial or an appeal. In Carlisle v. Carlisle, 313 So.2d 908 (La.App. 2d Cir.1975), writ denied, 319 So.2d 442 (La.1975), this court found that a motion made by a party for an appeal constitutes a waiver of the requirement that he be given notice of judgment. The Third Circuit observed in Tarver v. Anderson, 358 So.2d 1000 (La.App. 3d Cir.1978), that if a party moves for and is granted an appeal prior to service of notice of judgment, he is deemed to either have notice or to waive notice.

In Gauthreaux v. Gauthreaux, 377 So.2d 567, 570-71 (La.App. 3d Cir.1979), one of the issues before the court was whether a co-owner/husband received proper notice in partition proceedings. The court wrote:

Mrs. Gauthreaux exercised her right to démand a partition by filing a petition asking for a judicial partition by licitation. Mr. Gauthreaux |9was personally served with a copy of this petition. We find that this notice of the partition by licitation proceeding was the only notice to which Mr. Gauthreaux was entitled. The notice advised him that if he did not come forward to offer evidence that he was the sole owner, or that the property was co-owned but was divisible in kind, then the property would be sold at pub-lie auction and the proceeds would be divided between the co-owners. By taking no action, Mr. Gauthreaux acquiesced in the eventual default judgment against him which ordered the property sold. He will not now be heard to claim that he did not receive notice that the property would be sold.

In Sicard v. Sicard, 426 So.2d 299 (La.App. 4th Cir.1983), writ denied, 433 So.2d 163 (La.1983), Mrs. Sicard contended that the entire partition proceedings were null and void because neither she nor her attorney was given proper notice of the default judgment of partition, the sale or the preparation of the inventory and partition. Citing Gauthreaux, supra, the court found that although neither Mrs. Sicard nor her attorney received any further notice of the default judgment or the sale, service of the citation and the petition for partition by licitation was the only notice to which she was entitled. Furthermore, her failure to timely appeal from the default judgment (of which she received no notice) foreclosed any attack based on insufficiency of the proof upon which the judgment was rendered.

While we could find no cases directly on point, we conclude that in this partition suit, under the facts and circumstances of this case, Clower had actual notice/knowledge of the October 12, 2006, judgment of partition, as evidenced by the various pleadings in this action as well as the malpractice suit, by October 2007. Clearly he cannot at this late date assert his failure to receive notice of judgment in accordance with La. C.C.P. art. 1913 simply as a way to get around the new trial/appellate delays and raise his lack of consent to the exclusion of the minerals from the partition, an |inissue which should have been asserted and addressed before the partition judgment was even rendered. See, Sicard, supra. Therefore, we find no error in the trial court’s ruling denying Clower’s motion for new trial as untimely.

Furthermore, an untimely motion for new trial does not stop the appellate delays from running. Bayou Concession Scrap, Inc. v. Rose Towing, Inc., 08-308 (La.App. 5th Cir.10/28/08), 996 So.2d 1173, unit denied, 08-2821 (La.01/30/09), 999 So.2d 762; First National Bank of Commerce v. Boydell, 03-0613 (La.App. 4th Cir.09/24/03), 857 So.2d 1115. Absent a timely motion for appeal, the appellate court lacks jurisdiction over the appeal. Guillot v. Consolidated Freightways, 583 So.2d 113 (La.App. 5th Cir.1991). Therefore, Clower’s appeal was untimely and this appeal will be dismissed.

Conclusion

For the foregoing reasons, this appeal is dismissed. All costs of appeal are assessed to appellant, Larry Gene Clower.

      . Article 4630 provides that if the property to be partitioned is divisible in kind, and the defendant timely answers through counsel of his own selection and prays therefor, the court shall render judgment ordering the partition to be made in kind.

      . Two other nonresident co-owners waived formal citation and service of the partition petition.

      . Included in the correspondence from Weaver was a copy of the partition petition.

      . The clerk of court also issued a "Notice of Sale Date” on November 16, 2006, to counsel for Bank of America, the other nonresident co-owners, and Charles Weaver, but not to Larry Clower, who was at the time unrepresented by counsel or curator.

      . In an opposition to a motion to dismiss and for sanctions filed by Bank of America, Clower clarified that he did not ask the court to vacate that part of its order in which it vacated and set aside the sheriff's sale held on December 20, 2006, or insofar as it vacated and set aside the March 16, 2007, judgment homologating partition.

      . A ruling on the motion to dismiss and for sanctions filed by Bank of America, filed on August 7, 2008, was deferred until after a trial on the merits.

      . Mr. Gauthreaux filed an action of nullity in the partition proceedings, attacking the validity of the judgment ordering the sale as well as the sale itself, on the grounds that he was not served with a notice of seizure and sale. The trial court found the judgment to be valid, but set aside the sale for the sheriff's failure to comply with articles applicable to judicial sales under writs of fieri facias.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Ronnie Joe BROOKS, Jr., Appellant.
    No. 44,730-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 23, 2009.

      Richard Goorley, for Appellant.
    Jonathan M. Stewart, District Attorney, Kenneth P. Haines, Tammy G. Jump, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   MOORE, J.

hThe defendant, Ronnie Joe Brooks, Jr., was convicted of aggravated burglary, a violation of La. R.S. 14:60, on November 18, 2008. The trial court denied the defendant’s motions for post verdict judgment of acquittal and new trial and sentenced the defendant to 10 years at hard labor. The trial court denied the defendant’s motion to reconsider sentence. Brooks now appeals. For the following reasons, we modify the verdict, render a judgment of conviction of simple burglary of an inhabited dwelling pursuant to La. R.S. 14:62.2, and remand for resentencing.

FACTS

After committing a burglary with an accomplice, Codaro Dunn, in the home of the victim, Melissa Flournoy, the defendant was momentarily seized by the victim’s boyfriend, Joseph Daniel Smart (“Smart”), in her backyard, approximately 45 feet from the house. The defendant bit Smart and continued fleeing, only to be twice seized again by Smart until the police arrived and arrested him.

The state charged the defendant by bill of information with aggravated burglary on grounds that the defendant committed a battery “while leaving” the victim’s premises. A jury returned a verdict of guilty as charged. The defendant now appeals his conviction.

DISCUSSION

The issue generated by these facts is whether the battery committed by the defendant, when he was caught in the yard of the inhabited dwelling from which he was fleeing, can form the basis of an aggravated burglary charge within the meaning of La. R.S. 14:60, which provides:

| ¡Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.

(Emphasis supplied).

Battery is defined by La. R.S. 14:33 as “the intentional use of force or violence upon the person of another.”

Ms. Flournoy testified that she did not know either the defendant or codefendant, and that neither had permission to enter her house. After the police called her about the burglary, she returned home to discover that her children’s electronic toys and games had been taken and other items were broken and shattered.

Smart also testified that he immediately noticed that the X-box video game was missing when he entered the house and discovered it had been burglarized. After the police came and left, Smart left the home for a few minutes and after he returned he heard the intruders upstairs. Moments later, he saw the defendant stepping out the back door. The defendant saw that Smart had observed him and began running. Smart testified that he caught the defendant about 45 feet from the house in the victim’s backyard bushes. During the tussle, the defendant bit Smart on the arm.

[3In order to sustain the conviction for aggravated burglary, we must conclude that the defendant committed the battery while “leaving such place.” Smart testified that he first saw the defendant on the back porch, stepping out the back door. Brooks then fled. The biting, which clearly is a species of battery, occurred nearly 50 feet from the dwelling. After careful consideration of the statutory language, we conclude that the battery in this case does not meet the statutory requirement of occurring while “leaving such place.”

It is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. Thus, criminal statutes are given a narrow interpretation and any ambiguity in the substantive provisions of a statute as written is resolved in favor of the accused and against the state. State v. Carr, 1999-2209 (La.5/26/00), 761 So.2d 1271. State v. Newton, 42,743 (La.App. 2 Cir. 12/19/07), 973 So.2d 916, writ denied, 2008-1147 (La.1/16/09), 998 So.2d 90.

The words “such place” in part (3)refer to the “inhabited dwelling, or of any structure, water craft, or movable where a person is present” earlier stated in the first paragraph. Our jurisprudence is settled that to constitute an “inhabited dwelling,” a person must live in the dwelling, but the person need not be present in the inhabited dwelling at the time of the burglary. State v. Hall, 35,151 (La.App. 2 Cir. 9/26/01), 796 So.2d 164. Moreover, it is also settled that a yard, even when fenced, does not constitute a “structure” under our burglary statutes. State v. Alexander, 353 So.2d 716 (La.1977).

14 Our construction of the statutory phrase “Commits a battery upon any person while in such place, or in entering or leaving such place ” indicates that the legislature contemplated circumstances in which there is a close connection between the battery and the structure, such as when a burglar commits a battery on a victim to gain entry to the inhabited dwelling or structure, or commits a battery while within the structure, or commits a battery on a victim in order to leave the structure. In other words, there needs to be a relationship between the battery and either the burglar’s entry into, exit from, or presence in the structure. Once the burglar has exited the structure, the crime is complete.

Not surprisingly, we have been unable to locate a single case involving a conviction or charge for aggravated burglary where a battery was committed after the defendant left the structure. We consider this validation that the charge of aggravated burglary was not appropriate under these facts.

We therefore conclude that the evidence does not satisfy every element of aggravated burglary. On the other hand, we find that the evidence does satisfy the elements of simple burglary of an inhabited dwelling under La. R.S. 14:62.2, which is a responsive verdict to the crime charged. La. C. Cr. P. art. 814(42). Simple burglary of an inhabited home is the unauthorized entering of any dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or | ..¡persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60. La. R.S. 14:62.2. The evidence shows that the codefendants entered the -victim’s home with the intent to commit a theft within and indeed committed the theft. The defendant was seen exiting the home and subsequently caught. Hence, the evidence will support a conviction for the lesser included responsive offense of simple burglary of an inhabited dwelling. Judgment will be rendered accordingly. Entry of this lesser verdict necessarily requires remanding for resentencing.

We note that defendant’s counsel requested that we reverse the trial court’s ruling on Brooks’ motion for post verdict judgment of acquittal and, alternatively remand for a new trial. We deem that a new trial is unnecessary since the evidence supports a conviction for the responsive offense as stated above. See State v. Scott, 41,690 (La.App. 2 Cir. 1/24/07), 948 So.2d 1159.

Conclusion

For the reasons stated above, we modify the verdict of aggravated burglary and render a judgment of conviction of simple burglary of an inhabited dwelling. We vacate the sentence for aggravated burglary and remand for resentencing on the conviction of simple burglary of an inhabited dwelling.

VERDICT MODIFIED; JUDGMENT OF CONVICTION OF SIMPLE BURGLARY OF AN INHABITED DWELLING RENDERED, ORIGINAL SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

      . For ease in reading, we shall hereinafter use the term “structure” as synonymous with "inhabited dwelling,” and inclusive of any of the other structures, such as "water craft” or "vehicle," etc.