author: McClendon, j.

text:
    Gretchen DAFFIN v. James Bowman McCOOL.
    No. 2009 CA 0785.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Todd Gaudin, Marcus Foote, Bruce Kuehne, Baton Rouge, Louisiana, for Plaintiff/Appellee Gretchen Daffin.
    Nanine McCool, Mandeville, Louisiana, for Defendant/Appellant James Bowman McCool.
    Before DOWNING, GAIDRY and McClendon, jj.
   McClendon, j.

|2In this community property partition matter, we issued a rule to show cause why this appeal should not be dismissed and referred the rule to the merits of the appeal. The seminal issue before us is whether a stipulation signed by the parties’ attorneys, but not by the parties themselves, is a consent judgment such that the appellant is not entitled to an appeal. For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On June 23, 2004, Gretchen Daffin filed a petition against her former spouse, James B. McCool, to partition the remaining community property between the parties, particularly the family home. The matter went to trial on November 2, 2006, after which judgment was rendered awarding ownership of the former matrimonial domicile to Ms. Daffin upon payment to Mr. McCool of “one-half the equity less the payoff.” The trial court also awarded Ms. Daffin reimbursements for taxes and repairs, but denied her mortgage payment reimbursement claim. Judgment was signed on January 2, 2007. Ms. Daffin appealed, and on March 26, 2008, we affirmed the trial court’s judgment in an unpublished opinion. See Daffin v. McCool, 07-1589 (La.App. 1 Cir. 3/26/08), 978 So.2d 1261, 2008 WL 1787367. Neither party sought writs with the supreme court.

Thereafter, Mr. McCool filed a motion to release funds to satisfy the judgment, which was set for hearing on August 22, 2008. After a conference in chambers with the parties’ attorneys, a settlement was reached. Although a minute entry was taken, there was no open court recitation of the stipulation. The judgment was prepared by the attorneys for the parties, who approved the judgment as to substance and form. The judgment was not signed by the | ..parties individually. On September 11, 2008, the judgment was signed by the court.

On October 14, 2008, Mr. McCool filed a motion and order for appeal, which was denied by the trial court on October 27, 2008, with the notation: “In accordance w/CCP art. 2085 a party cannot appeal a judgment in which it acquiesced in.” On December 29, 2008, Mr. McCool filed another motion for appeal, which was signed by the trial court. On May 29, 2009, this court, ex proprio motu, issued a rule to show cause to the parties why the appeal should not be dismissed because the October 27, 2008 judgment appears to be a non appealable ruling under LSA-C.C.P. art. 2085, and the motion and order for appeal filed on December 29, 2008, appears to have been filed untimely. On September 1, 2009, the rule to show cause was referred to the panel to which the appeal was assigned.

DISCUSSION

In the case sub judice, Mr. McCool contends that he never consented to the stipulated amount in the September 11, 2008 judgment. Therefore, according to Mr. McCool, it was clear error by the trial court to conclude that he acquiesced in the judgment.

A compromise is a contract in which the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. LSA-C.C. art. 3071. It must be made in |4writing or recited in open court. LSA-C.C. art. 3072. An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. LSA-C.C.P. art. 2085.

It is undisputed in this matter that there was no open court recitation and that Mr. McCool did not sign the judgment. Further, although there is nothing in the record indicating that Mr. McCool specifically authorized his attorney to enter into the stipulation at issue, it is also undisputed that Mr. McCool was represented by counsel during these proceedings and at the time the judgment was submitted. Thus, the remaining issue is whether the signature of Mr. McCool’s attorney, based on the record before us, is legally sufficient to establish Mr. McCool’s acquiescence in the judgment.

Although LSA-C.C.P. art. 2085 references “a party,” in Sullivan v. Sullivan, 95-2122, p. 4 (La.4/8/96), 671 So.2d 315, 817-18, the supreme court stated that for a settlement agreement to be valid and enforceable, it must either be recited in open court and capable of being transcribed from the record of the proceeding or be in writing and signed by the parties or their agents. See also City of Baton Rouge v. Douglas, 07-1153, p. 5 (La.App. 1 Cir. 2/8/08), 984 So.2d 746, 749, writ denied, 08-0939 (La.6/20/08), 983 So.2d 1284. Finding that Mr. McCool’s attorney was clearly acting as his agent and representative in submitting the judgment, we conclude that Mr. McCool fully acquiesced in the stipulation and that it constituted a valid compromise. Accordingly, Mr. McCool cannot seek to appeal the September 11, 2008 judgment, and his appeal should be dismissed.

CONCLUSION

For the above and foregoing reasons, Mr. McCool’s appeal is dismissed at his costs.

APPEAL DISMISSED.

      . The minute entry reflects the stipulation as follows:
      Based on the stipulations of counsel and the parties, it was ordered that: The parties stipulate that the clerk shall release unto James B. McCool $49,307.08, plus legal interest from January 10, 2007 from the bond amount posted by Gretchen Daffin, and the remainder shall be disbursed to Gretchen Daffin and her attorney, Todd E. Gaudin, plus costs for this rule. Judgment to be signed when formal judgment is presented to the court.

      . Meanwhile, Mr. McCool applied for supervisory writs. We issued an interim order on April 27, 2009, requesting the trial court to file a per curiam demonstrating how the September 11, 2008 order constitutes a consent judgment under LSA-C.C. art. 3072. The trial court filed its per curiam, dated May 26, 2009, which provides:
      The case of Gretchen Daffin v. James B. McCool was set on the docket of my court on August 22, 2008. After a conference with the attorneys, a settlement was reached and a stipulation was entered on the record. (See attached minute entry.) The attorneys prepared an order in accordance with [the] stipulation. This order was approved as to substance and form by the plaintiff's and defendant's attorney. On September 11, 2008, I signed the consent order. The order was necessary because the settlement required the Clerk of Court of Ascension Parish to release funds which had been placed in the registry of the court.
      Thereafter, on July 22, 2009, we denied the writ, with the following language:
      WRIT DENIED. We note that relator may be able to seek redress by filing a direct action in nullity within the time limits provided by law.

      . We need not discuss whether Mr. McCool’s motion for appeal was filed timely, having found that he acquiesced in the stipulated judgment.


source: Caselaw Access Project

author: WHIPPLE, J.

license: Public Domain

text:
    George S. BARRIOS v. LAMBAR, INC. and Ohio Casualty Group.
    No. 2009 CA 1052.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Pete Lewis, New Orleans, LA, for Plaintiff/Appellee, George Barrios.
    Jacques Soileau, Eric J. Waltner, Lafayette, LA, for Defendant/Appellant, Lam-bar, Inc. and Ohio Casualty.
    E. Scott Hackenberg, Baton Rouge, LA, for Defendant/Appellee, Lambert Construction & Maintenance, Inc. and LIPCA, Inc.
    Before WHIPPLE, HUGHES and WELCH, JJ.
   WHIPPLE, J.

|2This matter is again before us on appeal by defendants, Lambar, Inc. (“Lam-bar”) and its insurer Ohio Casualty Group (“Ohio Casualty”), after the Office of Workers’ Compensation (“OWC”) judge failed to calculate and order the payment of penalties previously determined by this court to be due by co-defendants, Lambert Construction and Maintenance, Inc. (“Lambert Construction”) and its insurer, LIPCA, Inc. (“LIPCA”), despite this court’s prior judgment and instructions on remand. Finding merit to the appeal, we again vacate the judgment of the OWC and remand.

BACKGROUND FACTS AND PROCEDURAL HISTORY

In Barrios v. Lambar, Inc., 2007-2070 (La.App. 1st Cir.5/2/08), 991 So.2d 464, 469, this court held that the OWC judge had erred in failing to award statutorily mandated penalties owed by Lambert Construction and LIPCA for their failure to pay various benefits awarded by the OWC judge, and affirmed on appeal, as identified and set forth by this court in our May 2, 2008 opinion. Thus, the matter was remanded to the OWC judge for a hearing “to calculate the precise dollar amount of the penalties due at the statutory rate of 24% of the amounts awarded in the October 25, 2005 judgment.” (Emphasis added). Despite these instructions, on remand, the OWC judge only ordered Lambert Construction and LIPCA to pay penalties fixed as $46,397.71 for their failure to pay their half of benefits paid by Lambar through trial, ie., $193,323.80, within thirty days of the October 25, 2005 judgment, plus legal interest on the penalty sum from May 2, |32007, until paid.

From this “Amended Judgment,” rendered by the OWC judge on June 5, 2008, Lambar and Ohio Casualty appeal, contending that the OWC committed legal error in: (1) failing to calculate and render judgment for the full amount of previously awarded penalties pursuant to LSA-R.S. 23:1201(G) (and this court’s published opinion of May 2, 2008) on the untimely paid portion of the October 25, 2005 judgment, ie., Lambert’s share of the parties’ obligations for accrued indemnity and medical benefits, amounting to $144,639.11, paid as of the October 24, 2005 judgment, and continuing thereafter; (2) failing to calculate and award judicial interest owed on the untimely paid portion of the October 25, 2005 judgment for Lambert Construction and LIPCA’s one-half of the parties’ continuing obligations for indemnity and medical benefits amounting to $144,639.11; and (3) failing to award judicial interest on the 24% penalty for the untimely paid portion of the October 25, 2005 judgment representing one-half of the continuing obligations for indemnity and medical benefits amounting to $144,639.11. Additionally, Lambar and Ohio Casualty contend that they are entitled to additional attorney’s fees in connection with their work on appeal. We agree.

UDISCUSSION

As noted in our previous opinion of May 2, 2008, the October 25, 2005 OWC judgment at issue ordered therein that Lambert and LIPCA pay the following to Lambar and Ohio Casualty: (1) one-half of benefits paid through the date of trial ($193,323.80); (2) one-half of future indemnity and medical benefits; and (3) judgment for all underpayments to date ($32.15 per week), with interest on past due weekly benefits as they became due and continued indemnity benefits at the rate of $320.16 per week. As noted above in Barrios v. Lambar, Inc., 991 So.2d at 468-469, we specifically determined that the OWC judge erred in failing to award mandatory statutory penalties for these specifically identified delinquent payments due as on-going obligations. Thus, we amended the judgment to award Lambar and Ohio Casualty penalties on the amounts awarded at the statutory rate of 24% for the failure of Lambert and LIPCA to timely pay the amounts awarded in the October 25, 2005 judgment and remanded the matter to the OWC judge with instructions to conduct a hearing “to calculate the precise dollar amount of the penalties due at the statutory rate of 24% of the amounts awarded in the October 25, 2005 judgment.” Barrios v. Lambar, Inc., 991 So.2d at 468-469 (Emphasis added).

On remand, the OWC judge awarded Lambar and Ohio Casualty 24% penalties on $193,323.80, fixed as the amount of $46,397.71, as well as legal interest on the $46,397.71 penalty amount set forth in the original OWC judgment. As appellants correctly note, despite our instructions, the OWC judge failed or refused, however, to calculate and fix the amount of penalties due on Lambert and LIPCA’s “ongoing liability for 50 percent of any further [future] | indemnity and/or medical benefits due under this chapter,” which was also awarded in the October 25, 2005 judgment, and affirmed by this court.

At the May 23, 2008 hearing on remand, counsel for Lambert and LIPCA acknowledged that in addition to the award of $193,323.80, the October 25, 2005 judgment condemned them to pay “half of all future benefits paid by Ohio Casualty.” (Emphasis added). Counsel for Lambert and LIPCA further conceded that “[tjhere was a past amount” and that an “amount had accrued” during the period that the matter was on appeal. Without disclosing the amount paid, if any, by Lambert and LIP-CA on this acknowledged obligation, counsel argued “[w]e [did not] know what that amount was when the First Circuit’s decision was final,” “there was no stipulation as to that amount,” and “[t]hat amount was never agreed upon.” However, counsel’s statements and arguments regarding the absence of a stipulation by the parties as justification or explanation for his clients’ continued refusal to pay are of no moment, given this court’s plain directions and order that the OWC judge fix and determine this amount on remand and calculate penalties accordingly. See Barrios v. Lambar, Inc., 991 So.2d at 469. Further, counsel for Lambert and LIPCA (as well as the OWC judge) clearly misread this court’s prior opinion, in particular at 468-469, when stating, “[t]here’s nothing ... in the First Circuit’s judgment about any other funds [other than the award of $193,323.80] ... [t]hey are completely silent with respect to the accrued amounts subsequent to the October 2005 judgment.”

Contrariwise, on remand, counsel for Lambar and Ohio Casualty properly offered and introduced the entire record of these proceedings into evidence at the hearing. They additionally filed in the record their proposed calculations of the | (¡penalties and attorney’s fees owed by Lambert and LIPCA on the obligations awarded in the original October 25, 2005 OWC judgment and affirmed by this court on appeal. Despite their introduction of the record and submission of proposed calculations, the OWC judge erroneously declined to calculate and render judgment for these amounts as ordered on remand.

As such, we find the OWC judge erred on remand in failing to calculate and fix the precise amount of penalties due on the ongoing liability of Lambert Construction and LIPCA for one-half of future indemnity and medical benefits, as well as interest on that award as previously instructed by this court. Accordingly, we again remand this matter to the OWC judge to calculate the precise dollar amount due at the statutory rate of 24% of the remaining amounts awarded in the October 25, 2005 judgment, i.e., penalties and interest on the awards representing Lambert Construction and LIPCA’s one-half of the continuing obligations for indemnity and medical benefits.

With reference to Lambar and Ohio’s request for attorney’s fees in connection with their work on the appeal of this matter, we likewise find merit and award the sum of $5,000.00 for additional work necessitated on appeal.

CONCLUSION

For the above and foregoing reasons, the portion of the June 5, 2008 judgment at issue on appeal herein, awarding Lam-bar, Inc. and Ohio Casualty penalties in the amount of $46,397.71 for Lambert Construction and LIPCA’s failure to pay $193,323.80 within thirty days of the October 25, 2005 judgment, plus legal interest on the penalty sum from May 2, 2007, until paid, is affirmed. This matter is remanded to the OWC judge to conduct a hearing within 14 days of the date that this opinion becomes final to calculate and determine the precise 17amount due as penalties pursuant to LSA-R.S. 23:1201(G) on all untimely paid portions of the October 25, 2005 judgment representing one-half of the continuing obligations for indemnity and medical benefits, as further affirmed and recognized by this court in our prior opinion, as well as judicial interest and penalties on that award.

Judgment is further rendered herein in favor of Lambar, Inc. and Ohio Casualty and against Lambert Construction and Maintenance, Inc. and LIPCA, Inc. in the amount of $5,000.00 as additional attorney’s fees. All costs are assessed against the appellees, Lambert Construction and Maintenance, Inc. and LIPCA, Inc.

RENDERED IN PART; AFFIRMED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.

HUGHES, J., concurs.

      . For a full appreciation of the protracted procedural history of this case, see Barrios v. Lambar, Inc., 2006-0324 (La.App. 1st Cir. 12/28/06), 951 So.2d 323 and Barrios v. Lambar, Inc., 2007-2070 (La.App. 1st Cir.5/2/08), 991 So.2d 464.

      . In the May 2, 2007 judgment of the OWC upon which the last appeal was based, Lambert and LIPCA were also deemed liable for legal interest on all amounts awarded in the October 25, 2005 judgment. On remand the OWC calculated and fixed the amount of interest owed as $21,752.90, based on the $193,323.80 sum.

      . Lambar and Ohio Casualty contend that detailed payment histories were forwarded to Lambert and LIPCA on January 15, 2007, which showed that a total of medical and indemnity benefits in the amount of $289,647.11 had been paid to Barrios since the October 25, 2005 judgment. Accordingly, Lambar and Ohio Casualty contend that Lambert and LIPCA owed one half of this obligation, be., $144,639.11, which they further contend Lambert and LIPCA paid on or about May 11, 2007. While the amount of this award is not before us in this appeal, if Lambert and LIPCA do, in fact, challenge the amount of their half of the obligation, they may do so before the OWC judge on remand.

      . The October 25, 2005 judgment granted a motion for new trial for the sole purpose of allowing a deposition into evidence. Otherwise, the October 25, 2005 judgment reinstated and incorporated all of the terms of a previous “Final Judgment” rendered July 28, 2005.

      . Although the OWC judge did not allow the introduction of new evidence at the hearing on remand, counsel for Lambar and Ohio Casualty offered into evidence tire record from the original trial and the record from the hearing on the motion for penalties and attorney’s fees.

      . Further, in workers’ compensation cases, interest on penalties is allowed from the date of judicial demand. Henderson v. New Medico Associates, Inc., 95-0488 (La.App. 1st Cir. 11/9/95), 667 So.2d 1094, 1100, writ denied, 96-0505 (La.4/8/96), 671 So.2d 338.


text:
    Julia ALLEN v. BATON ROUGE GENERAL MEDICAL CENTER/GENERAL HEALTH SYSTEM & Dr. Leland Lenahan/Lammico.
    No. 2009 CA 1110.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Jeff C. Calmes, Baton Rouge, LA, for Plaintiff/Appellee, In Proper Person as Chairman of Medical Review Panel.
    Sumpter B. Davis, III, Baton Rouge, LA, for Counsel for Defendants/Appellees, Monica A. Major & Cedric Allen (Decedent, Julia Allen).
    Adrien G. Busekist, Baton Rouge, LA, for Counsel for Defendant/Appellee, Baton Rouge General Medical Center.
    Tara Bourgeois, Herbert J. Mang, Jr., Baton Rouge, LA, for Counsel for Defendants/Appellants, Leland Lenahan, MD & Louisiana Medical Mutual Insurance Company.
    Before DOWNING, GAIDRY, and McClendon, jj.
   McClendon, j.

12A physician and his insurer appeal a trial court’s judgment ordering them to pay the entirety of the costs of a medical review panel. For the following reasons, we reverse the trial court’s judgment to the extent that it granted summary judgment in favor of claimants and found that they were not required to pay any of the panel’s costs, amend the declaratory judgment with regard to allocation of costs, and affirm as amended.

FACTS AND PROCEDURAL HISTORY

Monica Major and Cedric Allen (claimants) filed a complaint of malpractice against Dr. Leland Lenahan and Baton Rouge General Medical Center (BRG), alleging that they breached the applicable standard of care, resulting in the death of their mother, Julia Allen. A medical review panel convened, considered the complaint, and issued the following opinion, in pertinent part, with regard to each of the healthcare providers:

BATON ROUGE GENERAL MEDICAL CENTER:
There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the Court. There is no documentation in the nurses’ notes that the patient received 40 milie-quivalent of potassium p.o.
DR. LELAND LENAHAN:
The evidence supports the conclusion that Dr. Lenahan failed to comply with the appropriate standard of care as charged in the Complaint. The panel was unable to render [an] expert opinion as to whether or not the conduct complained of was a factor in the resulting damages.

Following the panel’s decision, the parties could not reach an agreement with regard to their respective responsibilities for the costs of the medical review panel.

Jeffery Calmes, the attorney chairperson of the review panel, filed a petition for declaratory judgment, seeking a judicial determination of the respective parties’ liabilities for costs of the panel. Claimants, in turn, filed a|smotion for summary judgment seeking a ruling that they were not liable for any of the costs of the medical review panel insofar as they did not prevail on the issue of causation.

Following a hearing, the trial court granted summary judgment in favor of claimants. The trial court also ordered Dr. Lenahan and his insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), to pay the panel’s costs as well as the cost of the declaratory judgment proceedings. Dr. Lenahan and LAMMICO have filed this appeal, contending that the trial court erred as a matter of law in assessing costs against it.

DISCUSSION

Louisiana Revised Statutes 40:1299.47(1) addresses payment of costs for medical review panel proceedings and provides, in pertinent part:

(2) (a) The costs of the medical review panel shall be paid by the health care provider if the opinion of the medical review panel is in favor of said defendant health care provider.
(b) The claimant shall pay the costs of the medical review panel if the opinion of the medical review panel is in favor of the claimant....
(3) If the medical review panel decides that there is a material issue of fact bearing on liability for consideration by the court, the claimant and the health care provider shall split the costs of the medical review panel.... [Emphasis added.]

Dr. Lenahan and LAMMICO submit that the panel’s finding that Dr. Lenahan “failed to comply with the appropriate standard of care” is a finding “in favor of the claimant[s],” and therefore claimants should bear all costs of the panel proceedings. Dr. Lenahan and LAMMICO urge that under LSA-R.S. 40:1299.47(G)(1), a panel’s finding is in favor of the claimants when “[t]he evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.”

Dr. Lenahan and LAMMICO also urge that the trial court erred in requiring it to pay any portion of the fee with regard to the claims asserted against BRG. Dr. Lenahan and LAMMICO note that the panel found that “[t]here is a material issue of fact, not requiring expert opinion, bearing on [BRG’s] liability.” As such, |,,Dr. Lenahan and LAMMICO conclude that LSA-R.S. 40:1299.47(I)(3) requires BRG and claimants to split these costs.

In opposition, claimants assert that the panel’s opinion would not be relevant to any party if it did not resolve the issue of liability and causation. Claimants assert that “in favor of’ in subsection “I” should be read in pari materia with LSA-R.S. 40:1299.47(G)(4), which provides:

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 ...

Claimants aver that a finding of liability without concomitant causation was not a decision “in favor of the claimant” as required under Section 47(I)(2)(b).

Claimants further contend that LSA-R.S. 40:1299.47 must be read in conjunction with the LSA-R.S. 9:2794, concerning the burden of proof in a malpractice action, to provide some statutory definition to determine in whose favor the decision was rendered. Claimants assert that LSA-R.S. 9:2794 requires that in the event liability is found of the part of the health care provider, it must be determined whether that liability caused any injury to the claimant. Because this determination was not made, claimants conclude that the decision was not “in favor of the claimant.”

Under the general rules of statutory construction, courts begin their review with the premise that legislation is the solemn expression of the legislative will, and therefore, the interpretation of law primarily involves the search for the legislative intent. State Civil Serv. Comm’n v. Dep’t of Pub. Safety Dir., 2003-1702, p. 5 (La.4/14/04), 873 So.2d 636, 640. When a law is clear and unambiguous and its application will not lead to absurd consequences, it must be applied as written. LSA-C.C. art. 9. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 12.

Although the parties invite this court to consider other portions of LSA-R.S. 40:1299.47 as well as LSA-R.S. 9:2794 concerning the burden of proof in a malpractice action, in order to define the meaning of “in favor of,” we find it | .¡unnecessary insofar as LSA-R.S.40:1299.47(I) is clear and unambiguous. In adopting the cost provision in LSA-R.S. 40:1299.47, it is evident that the legislature intended for the party in whose favor the opinion was rendered to pay the costs of the proceeding. LSA-R.S. 40:1299.47(I)(2)(a) and (b). However, if any issues of fact regarding liability precluded the medical review panel from rendering a decision in favor of the claimant or the health care provider, then the costs would be split equally between the parties. LSA-R.S. 40:1299.47(I)(3). Application of Louisiana Revised Statutes 40:1299.47(1) in such a manner does not lead to absurd consequences.

With regard to the claims asserted against BRG, the panel found that “[t]here is a material issue of fact ... bearing on liability.” The panel’s finding tracks the language in LSA-R.S. 40:1299.47(I)(3), and clearly requires the costs associated with claimants’ claims against BRG to be split between the claimants and BRG. As such, the trial court erred as a matter of law in failing to assess claimants and BRG any costs in this regard. Louisiana Revised Statutes 40:1299.47(I)(3) mandates that half of the medical review panel’s costs be divided equally between the claimants and BRG.

With regard to the claims against Dr. Lenahan, although the panel found that he breached the appropriate standard of care, it was unable to render an opinion as to whether the conduct was a factor in the resulting damages. In so ruling, the panel, while it did not track the language of LSA-R.S. 40:1299.47(1X3), in essence found that material issues of fact remained bearing on liability — i.e., whether Dr. Len-ahan’s breach of the applicable standard of care caused claimants’ damages. Accordingly, we find that the trial court erred as a matter of law in failing to assess claimants a portion of the costs with regard to its claims against Dr. Lenahan, and that LSA-R.S. 40:1299.47(1X8) requires that the costs for the remaining half of the panel proceedings be divided equally between the claimants and appellants, Dr. Lenahan and LAMMICO.

Dr. Lenahan and LAMMICO also urge that they should not be required to pay the entire cost of the declaratory judgment proceedings. As a general rule, | ,jthe party cast in judgment is taxed with the costs of the proceedings. LSA-C.C.P. art. 1920. Presumably, the trial court assessed Dr. Lenahan and LAMMICO with all costs because it cast them in judgment; however, because the trial court’s ruling was in error, there is no basis under this general rule to order Dr. Lenahan and LAMMICO to pay all costs of the declaratory judgment proceedings. Moreover, we note that the trial court can assess costs in any equitable manner, and its assessment will not be reversed on appeal in the absence of an abuse of discretion. LSA-C.C.P. art. 1920 and State, Dept. of Transp. and Dev. v. Restructure Partners, LLC, 07-1745, pp. 29-30 (La.App. 1 Cir. 3/26/08), 985 So.2d 212, 234, writ denied, 08-1269 (La.9/19/08), 992 So.2d 937. Nevertheless, there is nothing in the record to support the trial court’s ruling assessing Dr. Lenahan and LAMMICO with the total costs of the declaratory judgment proceedings.

For the foregoing reasons, we reverse the trial court’s judgment granting claimants’ motion for summary judgment, and we amend the declaratory judgment to assess claimants with 50% of the total costs of the medical review panel proceedings; appellants, Dr. Lenahan and LAM-MICO, with 25% of the total costs of the panel proceedings; and BRG with 25% of the total costs of the panel proceedings. We also reverse the trial court’s judgment to the extent it required appellants to pay all costs of the declaratory judgment proceeding. In light of the fact that BRG timely submitted its payment to the attorney chairperson, we amend the judgment to assess the costs of the declaratory judgment proceedings equally between the appellants, Dr. Lenahan and LAMMICO, and claimants. Costs of this appeal are to also be split between the appellants and claimants, with Dr. Lenahan and LAMMI-CO paying 50% and claimants paying 50%.

GRANT OF MOTION FOR SUMMARY JUDGMENT REVERSED. DECLARATORY JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

DOWNING, J., concurs.

      . BRG, however, issued payment for its shares of the attorney chairperson costs and for the full amount of the panel cost. The chairperson returned BRG's check for payment of the chairperson fees, but the physicians serving on the panel have retained their payments.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Pervis WILLIAMS.
    No. 09-KA-491.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2On December 21, 2006, the Jefferson Parish Grand Jury returned an indictment charging defendant, Pervis Williams, with one count of second degree murder in violation of LSA-R.S. 14:30.1. At the arraignment, defendant pled not guilty. On January 8, 2009, and on February 17, 2009, the trial court heard and denied defendant’s motions to suppress photo identifications.

Defendant proceeded to trial before a twelve person jury on February 18 and 19, 2009. After considering the evidence presented, the jury found defendant guilty of second degree murder. On March 10, 2009, defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals challenging the sufficiency of the evidence used to convict him.

FACTS

On October 21, 2006,17-year-old Quant-relle Barbie died from a single gunshot wound to his head. Monntrell Barbie, the victim’s younger brother, and | sLloyd Thomas both identified defendant as the shooter. Both of these eyewitnesses testified at trial.

Monntrell testified that on the morning of the shooting, the victim told him that the previous night he was involved in a physical fight with defendant over a marijuana cigarette. According to Monntrell, he and his brother saw defendant the morning of the shooting and his brother and defendant exchanged “unfriendly” words. Monntrell testified that later that day, at approximately 11:00 a.m., as his brother was riding his bike toward him, he observed defendant come out of a high field of grass and shoot his brother. According to Monntrell, after his brother fell to the ground, defendant looked at him and then chased him with the gun and tried to shoot him, but the gun jammed. Monntrell ran to an apartment and asked to use the phone. He called 9-1-1 and told the police his brother had been shot. Monntrell then left the apartment and went to someone else’s house and laid down on the side of the bed because he was scared. Monntrell eventually returned to the scene of the shooting, talked to the police, and then went to the police station. Monntrell was shown a photographic lineup and selected defendant’s photograph as the person who shot his brother.

Another witness, Lloyd Thomas, testified that he observed the shooting, which occurred at approximately 10:30 a.m. He testified that he was riding his bicycle on Lac Couture Drive when he saw someone, whom he later identified as defendant, jump out from between two apartment buildings and confront a person riding a bicycle. He testified that the victim got off the bicycle and put his hands up. He said he heard the shooter say, “What now?” He testified that defendant held a gun to the victim’s head and shot him. Mr. Thomas left the scene after defendant pointed the gun toward him. Several hours later, Mr. Thomas had someone contact the police for him. He subsequently identified defendant in a photographic lineup as the shooter.

1 ,tFollowing police investigation and the positive identification of defendant by the two witnesses, defendant was arrested and charged with second degree murder.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant challenges the sufficiency of the evidence used to convict him of second degree murder. He specifically argues that the State failed to prove his identity as the shooter.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether after 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. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005).

Under LSA-R.S. 14:30.1, second degree murder is defined as the killing of a human being when the offender 1) has specific intent to kill or to inflict great bodily harm; or 2) is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though he has no intent to kill or to inflict great bodily harm. State v. Lewis, 05-170 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-0757 (La.12/15/06), 944 So.2d 1277. In the instant case, the State proceeded under the first theory of second degree murder. As such, to prove second degree murder the State was required to prove (1) the killing of a human being, and (2) that the defendant had specific intent to kill or inflict great bodily harm. State v. Pagan, 04-1478 (La.App. 5 Cir. 5/31/05), 905 So.2d 435, 441, writ denied, 05-2003 (La.2/17/06), 924 So.2d 1013.

|5In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926.

In the present case, defendant does not argue that the State failed to establish any of the essential statutory elements of his conviction, but rather contends the State failed to prove beyond a reasonable doubt his identity as the offender. Defendant specifically argues that he could not have been the shooter because he was at home asleep at the time of the incident and further he had a cast on his right arm at the time, making it physically impossible for him to pull the trigger of a gun.

To support his alibi that he was asleep, defendant presented the testimony of his sister Charlene Williams. She testified that at the time of the incident she lived with her mother and defendant about a block and a half from where the murder occurred. She stated that on October 21, 2006, she had plans to go to Donaldsonville for a family gathering and defendant had intended on going with her. However, when she was ready to leave, defendant was still asleep. After refusing to wait for him, she left her home between 11:30 and 11:45 a.m.

At trial, defendant testified in his own behalf. He denied killing the victim and claimed, in accordance with the testimony of his sister, that he was asleep at his home on the morning of October 21, 2006, at 11:30 a.m. He stated he was supposed to go to Donaldsonville with his sister that day, but had overslept. He stated that he finally got up between 1:30 and 2:00 p.m. and that his mother was home when he awoke.

| sin contrast to this alibi evidence, the State presented the testimony of two eyewitnesses who identified defendant as the shooter. Monntrell testified that he was a few feet from the shooter and was positive that defendant shot his brother. He testified that defendant was the shooter and chased him with a gun. Monntrell testified that he could never forget the face of the man who shot his brother, and that he knew defendant from the neighborhood.

Mr. Thomas testified that he was approximately ten or fifteen feet away from the shooting. He testified that he was positive defendant was the shooter. Mr. Thomas testified that although he did not know defendant’s name, he knew defendant from previously playing basketball with him.

Moreover, Detective Roger Gorumba of the Jefferson Parish Sheriffs Office testified that both Monntrell and Mr. Thomas identified defendant as the shooter in photographic lineups. He explained that both witnesses were familiar with defendant from the neighborhood prior to the shooting. Detective Gorumba testified that he did not suggest the shooter to them or tell them they had to make an identification. He also denied threatening or coercing them to make the identifications.

In further support of his theory of mis-identification, defendant argues that it was physically impossible for him to have shot the victim because his right hand was broken and in a cast. Defendant presented testimony that he was unable to use his right hand at the time of the incident. Defendant’s sister testified that in September of 2006, defendant, who was right-handed, broke his right hand. She explained that defendant had a hard cast on his arm that went from his fingertips to above his elbow. She stated that each of defendant’s fingers had its own slot with only his fingertips showing. She testified that defendant could not bend his fingers and that he could not write.

17Pefendant testified that he was right-handed and broke his right hand on September 15, 2006, because he got into a fight while playing basketball. He testified that he had a cast from above his elbow to the tip of his hand, with only his fingertips exposed. He testified that the cast was removed while he was in jail and that he had written a “sick call to medical” to alert them that the cast needed to come off. He testified that he wrote it with his left hand because he could not write with his right hand due to the east. Defendant also testified that he initialed the waiver of rights form with his left hand and did not sign his name because he could not write. Further, he testified that he was unable to hold a gun in his right hand because the cast extended from the top of his elbow to his fingertips. At trial, defendant showed the jury his fingers and how he could not straighten his fingers completely.

Further, the parties stipulated to the testimony of Dr. Charles Stevens that defendant’s right hand had a complete transverse fracture involving the mid-shaft of the second metacarpal with mild distraction and angulation.

In contrast to defendant’s allegation that he could not use his right hand, the State presented the testimony of Captain Thornton, who testified that defendant had a cast but was still able to put the pen in his hand and author his initials on the waiver of rights form. Captain Thornton stated that defendant did not express difficulty in holding the pen and putting his initials and that he did not express a reluctance to ■writing. He testified that defendant was right-handed and that he did not notice any restriction in the way defendant conducted his right hand. He testified that he asked defendant to sign the rights form, but that instead of his signature defendant wrote his initials.

Moreover, Mr. Thomas testified that the shooter had a cast that allowed his fingers to move. He testified that defendant was able to use his trigger finger on the morning of the shooting and that he saw defendant shoot the gun despite the | Scast. He testified that he saw defendant’s fingers move and that he was gripping the pistol. Detective Gorumba testified that Mr. Thomas told him the shooter held the gun in his right hand.

Monntrell testified that defendant had a cast on his arm on the day of the shooting, but he could not recall which arm the cast was on. He then remembered that he told the police that he thought defendant’s cast was on his left arm. Monntrell was asked what would he say if defendant had a cast on his right arm and was right-handed and claimed he could not do the shooting that way. Monntrell responded, “I know it was him that did it.”

Although defendant claimed he could not have been the shooter because he was asleep at the time and had a broken hand, the jury chose to believe the two eyewitnesses who testified that they saw defendant, whom they knew prior to the incident, shoot the victim while wearing a cast. Positive identification by only one witness is sufficient to support a conviction. State v. Harris, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193.

In support of his insufficiency claim, defendant further attacks the credibility of the State’s witnesses and makes refer-enees to discrepancies in their testimonies. We acknowledge some inconsistencies in the testimony. Mr. Thomas testified that he was approximately ten or fifteen feet away from the shooting whereas in his statement to Detective Gorumba he claimed that he was fifteen to twenty feet away. Also, Mr. Thomas recalled telling the police that the shooter shot the victim at pointblank range whereas the autopsy report reflected the victim died of a distant gunshot wound. Mr. Thomas told the police there was one gunshot, while Monnt-rell recalled telling the police that he heard two gunshots. There were also discrepancies in the testimony regarding where defendant emerged from prior to the shooting and also who was present at the time of the shooting.

[ 9The jury heard all the inconsistencies in the evidence presented and obviously found the State’s witnesses more credible than the defense witnesses. The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The jury was presented with all of the evidence and obviously rejected defendant’s theory that he was not the person who killed the victim.

Viewing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could have found that the State proved beyond a reasonable doubt the essential elements of the crime, including defendant’s identity as the perpetrator of the offense. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals a discrepancy in the commitment and transcript regarding the trial court’s advisal of the prescriptive period for filing post-conviction relief. Although the commitment reflects defendant was properly advised of the prescriptive period for filing post-conviction relief, the transcript reflects an incomplete advisal. The transcript reflects that the trial judge advised defendant he had “two years from the date the conviction becomes final within which to seek Post Conviction Relief.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction | 10and, sentence become final is incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. In accord with State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272, and State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473, we advise defendant by this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . Monntrell testified that defendant was known around the neighborhood as ''Diddy.” However, defendant denied that his nickname was "Diddy.”


author: WALTER J. ROTHSCHILD, Judge.

text:
    Jennifer JONES, Individually and On Behalf of Her Minor Child, Haley Jones v. Shannon JONES, ABC Insurance Company and Cobe Cardiovascular Inc., et al.
    No. 09-CA-757.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.
    Michelle Mayne Davis, Mark G. Duncan, Attorneys at Law, Mandeville, LA, for Plaintiff/Appellant.
    Vincent J. Booth, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

[ .¿Plaintiff, Jennifer Brunelle, formerly-known as Jennifer Jones, appeals the denial of her Petition to Nullify Orders and Judgment. For the following reasons, we affirm.

PROCEDURAL HISTORY

On June 3, 2009, Jennifer Brunelle filed a Petition to Nullify Orders and Judgments on behalf of herself and her minor child, Haley Jones, case number 673-912 in the 24th Judicial District Court (“the nullity action”), seeking to annul a judgment rendered by another division of the trial court on April 21, 2009. In her petition, Ms. Brunelle asserts that on February 22, 1999, she and Shannon Jones, who were married at the time, commenced a lawsuit entitled Shannon Jones, et al. v. ABC Insurance Company, case number 535-525 in the 24th Judicial District Court (“the personal injury action”), seeking damages for injuries sustained by their daughter, Haley, during a surgical procedure on February 20, 1998. According to plaintiff, she and Mr. Jones were divorced on March 24, 1999 after the lawsuit was filed. Ms. Brunelle further states that on February 9, 2006, she and|sMr. Jones filed a Petition for Confirmation of Natural Tu-trix and Natural Undertutor of Haley, case number 628-080 in the 24th Judicial District Court (“the tutorship action”), and the trial judge issued letters of tutorship naming Ms. Brunelle as the natural tutrix of Haley and Mr. Jones as the undertutor.

According to Ms. Brunelle, after two defendants in the personal injury action agreed to settle the claims against them for $8.25 million, Mr. Jones filed a Motion to Establish a Supplemental Trust under 42 U.S.C. § 1396p(d)(4)(A) in the personal injury action, and on April 21, 2009, the trial judge issued a judgment granting the motion to establish the Haley Jones Supplemental Care Trust and naming Franklin Templeton Bank & Trust as the trustee. It is this April 21, 1999 judgment that Ms. Brunelle seeks to annul.

In her Petition to Nullify Orders and Judgments, Ms. Brunelle claims that the April 21, 2009 judgment is an absolute nullity, because the trial judge lacked subject matter jurisdiction to render this judgment. She contends that establishment of a trust could only be done in a tutorship proceeding, that proper venue for a tutorship proceeding in this case is St. Tammany Parish or East Baton Rouge Parish, pursuant to LSA-C.C.P. art. 4031(B), and that venue in a tutorship proceeding is jurisdictional and non-waiva-ble.

On July 7, 2009, Mr. Jones filed a Peremptory Exception of No Right of Action and an Answer to the petition, asserting that the establishment of the trust was not required to be done in a tutorship proceedings and that the division of the trial court in which the personal injury action was pending was the proper court for establishment of the trust.

|4On July 15, 2009, the Petition to Nullify Orders and Judgments came for hearing before the trial judge. After considering the arguments of counsel, the trial judge denied Ms. Brunelle’s Petition to Nullify Orders and Judgments and signed a written judgment denying the petition on that date. It is from this judgment that plaintiff appeals.

DISCUSSION

On appeal, Ms. Brunelle argues that the trial court erred in denying the Petition to Nullify the April 21, 2009 judgment under LSA-C.C.P. art. 2002(A)(8), because the trial court lacked subject matter jurisdiction to establish the trust for the benefit of Haley and to appoint a trustee. She claims that proper venue and thus, subject matter jurisdiction, lies in the parish where the minor’s parents were divorced, i.e. East Baton Rouge Parish, or the parish of the minor’s domicile and residence, i.e. St. Tammany Parish, pursuant to LSA-C.C.P. art. 4031(B).

Mr. Jones responds that the Petition for Nullity was properly denied, because the April 21, 2009 judgment is not a final judgment, and the Louisiana Code of Civil Procedure provisions regarding actions for nullity apply only to final judgments. LSA-C.C.P. art. 2001 through 2006. Mr. Jones further asserts that Ms. Brunelle filed a writ application with this Court, writ no. 09-C-690, seeking review of the April 21, 2009 judgment rendered in the personal injury action, and the writ application was denied by this Court on October 8, 2009.

After reviewing the record in this matter, it is impossible for this Court to say that the trial court erred in denying Ms. Brunelle’s Petition to Nullify Order and Judgments. The record before us does not contain a copy of the April 21, 2009 judgment or any other documents pertaining to the personal injury action. Furthermore, no evidence or exhibits were introduced or submitted at the hearing |sin this matter. Thus, the record contains no exhibits, documentation, or evidence for this Court to review.

Mr. Jones contends that the judgment complained of is not final and cannot be the subject of a nullity action. Without any evidence pertaining to the personal injury action, we cannot determine if all the merits of that case have been adjudicated and whether or not the judgment complained of is final.

A Court of Appeal is a court of record, which must limit its review to evidence in the record before it and render its judgment upon the record on appeal. LSA-C.C.P. art. 2164; Hover v. Farber, 05-613, p. 3 (La.App. 5 Cir. 1/31/06), 922 So.2d 637, 638. The record on appeal is that which is sent by the trial court to the appellate court and includes pleadings, court minutes, transcripts, jury instructions, judgments, and other rulings, unless otherwise designated. LSA-C.C.P. art. 2128; Reed v. Peoples State Bank of Many, 36,531, p. 4-5 (La.App. 2 Cir. 3/5/03), 839 So.2d 955, 958. Memoranda and exhibits which were not filed into evidence in the trial court are not part of the record on appeal. Id.

It is well-settled that the appellate briefs of the parties are not part of the record on appeal, and this Court has no authority to consider facts referred to in appellate briefs if they are not in the record that is lodged in the appellate court. Austin v. State Farm Ins. Co, 06-808, p. 5 (La.App. 5 Cir. 3/13/07), 956 So.2d 13, 15, writ denied, 07-0761 (La.6/1/07), 957 So.2d 178. If a party’s brief asserts facts which are not in the record and refers to exhibits which have not been filed into evidence in the trial court, an appellate court may not consider those memoranda or exhibits, since they are outside the record. LSA-C.C.P. art. 2164; Reed, 36,531 at 5, 839 So.2d at 958; Ray Brandt Nissan, Inc. v. Gurvich, 98-634, p. 3 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, 476.

| (Because no evidence of the April 21, 2009 judgment or the personal injury proceedings appears in the record, we have no basis upon which to consider the merits of Ms. Brunelle’s argument on appeal. Therefore, based on the record before us, we cannot say that the trial court erred in denying the Petition to Nullify Orders and Judgments.

DECREE

For the foregoing reasons, we affirm the July 15, 2009 judgment of the trial court, denying plaintiffs’ Petition to Nullify Orders and Judgments.

AFFIRMED.

      . In her Petition to Nullify Orders and Judgments, Ms. Brunelle also sought to annul the letters of tutorship issued in the tutorship proceeding in February 2006. However, at the hearing in this matter on July 15, 2009, counsel for Ms. Brunelle only argued regarding the April 21, 2009 motion & apparently abandoned the claim regarding the February 2006 judgment, stating that it was "fairly a moot issue." Ms. Brunelle also argues solely about the trial court’s failure to annul the April 21, 2009 judgment on appeal.


text:
    MAI VU v. Charles L. ARTIS, Werner Enterprises, Inc. of Nebraska a/k/a Werner Enterprises, Inc., and AIG Insurance Company.
    No. 09-CA-637.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Leo J. Palazzo, David D. Bravo, Attorneys at Law, Gretna, Louisiana, for Plaintiff/Appellant.
    William M. McGoey, Durward D. Cas-teel, Aaron J. Messer, Attorneys at Law, Baton Rouge, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

IgPlaintiff, Mai Vu, appeals the December 12, 2008 trial court judgment, which was rendered in accordance with the jury’s verdict, finding defendant, Charles Artis, not negligent with regard to the motor vehicle accident in this case and dismissing plaintiffs lawsuit. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on August 4, 2003 on Interstate 10 in Jefferson Parish. On August 2, 2004, Mrs. Vu filed a Petition for Damages against Charles Artis, his employer, Werner Enterprises, Inc. of Nebraska (“Werner”), and their insurer, AIG Insurance Company, alleging that defendants are liable for injuries she sustained in the accident. At the time of the accident, Mrs. Vu was driving her 1990 Honda Accord and Mr. Artis was driving a 2002 Freightliner Field owned by his employer, Werner. In her petition, Mrs. Vu contends that she was driving eastbound in the right lane of Interstate 10 when Mr. Artis suddenly swerved into her lane, causing her to collide with the 18-wheeler Rdriven by Mr. Artis. She claims that Mr. Artis was solely at fault for the accident and that she suffered serious injuries as a result of the accident.

A jury trial was held on December 10, 2008 to December 12, 2008. At trial, Charles Artis testified that on August 4, 2003, he was a commercial truck driver for Werner and was driving a 140,000-pound tractor-trailer on Interstate 10 going east toward the city. This part of the interstate consisted of three lanes, and he was traveling in the center lane. Mr. Artis stated that it was drizzling, but visibility was still good. He testified that the speed limit was 60 miles per hour, but he was traveling approximately 54 miles per hour, because the road was wet from earlier rain and there was moderate traffic. According to Mr. Artis, it would take approximately 100 yards to bring his vehicle to a complete stop.

Mr. Artis testified that as he was traveling in the center lane, a vehicle a couple of cars ahead of him began to “fish-tail” and an accident subsequently occurred involving that car. Mr. Artis testified that the vehicles in front of him started to brake and he did not believe that he could stop in the center lane. Mr. Artis saw enough room ahead to safely stop in the right lane and he saw headlights far back enough to allow him to safely move into the right lane, so he merged into the right lane. As he proceeded to merge, the car in front of him in the center lane also moved to the right lane, which reduced the distance he had to stop, so he pulled partially onto the right shoulder and adjacent grass in order to avoid hitting the vehicle in front of him. Mr. Artis testified that he began to lose some traction as he merged into the right lane, but he still maintained control of his vehicle. According to Mr. Artis, he brought his tractor-trailer to a complete stop and then felt Mrs. Vu strike his vehicle from behind.

Mai Vu testified that on August 4, 2003, she was in the right lane of Interstate 10 traveling east. Although the speed limit was 60 miles per hour, she |4was traveling approximately 45 miles per hour because there was moderate traffic and the road was wet. She stated that she was traveling with her headlights on and it was drizzling, but the rain did not affect her vision and she could see clearly ahead of her. Mrs. Vu testified that all of a sudden, a truck that was traveling to her left swerved in front of her, so she slammed on her brakes, held onto the steering wheel, and collided with the truck. She stated that she did not know if Mr. Artis was in the center or left lane prior to swerving in front of her, and she was unaware that another accident happened ahead of them. Photographs of the accident scene show a wrecked vehicle in the median ahead of them, indicating that another accident did indeed occur.

Several other witnesses testified at trial with regard to the injuries Mrs. Vu sustained as a result of the accident.

On December 12, 2008, at the conclusion of trial, the jury deliberated and came to a unanimous verdict, finding that Mr. Artis was not negligent with regard to this accident. On that same date, the trial judge rendered a judgment in accordance with the jury’s verdict, finding Mr. Artis not negligent with regard to this accident and dismissing plaintiffs lawsuit against all defendants. On December 17, 2008, plaintiff filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative Motion for New Trial, which was denied by the trial court. Plaintiff, Mai Vu, appeals.

LAW AND DISCUSSION

In her sole assignment of error on appeal, Mrs. Vu contends that the jury’s verdict, allocating no fault to Mr. Artis, was manifestly erroneous and clearly wrong. She asserts that Mr. Artis violated LSA-R.S. 32:79 when he moved his eighteen-wheeler from the center lane into the right lane without first ascertaining that such movement could be made safely. Plaintiff asserts that professional truck | ^drivers, such as Mr. Artis, bear the highest standard of care when operating an eighteen wheeler and that Mr. Artis breached this duty of care by erratically swerving into Mrs. Vu’s lane of travel. Mrs. Vu alleges that when Mr. Artis swerved in front of her, she slammed on her brakes but could not stop before hitting his vehicle. She claims that the evidence at trial pointed so strongly in her favor that reasonable minds could not reach a different conclusion.

Defendants respond that the evidence shows that Mr. Artis safely merged into the right lane after noticing an accident occurring ahead of him, and he brought his tractor-trailer to complete stop before Mrs. Vu struck him from behind. They assert that Mrs. Vu did not keep a proper lookout or take an evasive action to avoid striking Mr. Artis’s vehicle and that the photographs show she hit him “at almost a square rear-end.” They claim that a reasonable jury could have chosen to believe Mr. Artis’ testimony over Mrs. Vu’s testimony, and that the jury’s verdict should be upheld.

A court of appeal may not set aside a jury verdict in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Vega v. State Farm Mut. Auto. Ins. Co., 08-152, p. 6 (La.App. 5 Cir. 10/28/08), 996 So.2d 1164, 1168. The manifest error-clearly wrong standard of review is based upon recognition of the trier of fact’s better capacity to evaluate live witnesses, as compared with the appellate court’s access only to a cold record, as well as the proper allocation of trial and appellate functions between the respective courts. Henderson v. Nissan Motor Corp., 03-606, p. 10 (La.2/6/04), 869 So.2d 62, 69.

A determination of negligence or fault is a factual determination. In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test: (1) the appellate court must find that a reasonable factual basis does | (inot exist in the record for the finding; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong. Stobart v. State, Department of Transp. and Dev., 617 So.2d 880, 882 (La.1993). When factual findings are based upon determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Harris v. Delta Development Partnership, 07-2418 (La.App. 1 Cir. 8/21/08), 994 So.2d 69, 74; Rosell v. ESCO, supra at 844. Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

LSA-R.S. 32:79(1) provides:

A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

A motorist has a duty to maintain a careful lookout, observe any obstructions present, and exercise care to avoid them. Ransome v. Bordelon, 01-1095 (La.App. 5 Cir. 1/15/02), 807 So.2d 1007, 1009. The law places a greater burden of care on a motorist changing lanes than on a motorist proceeding at a lawful rate of speed in a marked lane. Mays v. Safeway Ins. Co., 41,911, p. 2 (La.App. 2 Cir. 2/28/07), 953 So.2d 843, 846, writ denied, 07-666 (La.5/11/07), 955 So.2d 1284. When there is a lane change immediately preceding an accident, the burden is on the motorist changing lanes to show that he first ascertained that the movement was being made safely. Id.; Charrier v. Primm, 40,038, pp. 7-8 (La.App. 2 Cir. 8/19/05), 909 So.2d 1033, 1037.

In a rear-end collision, there is a well-established presumption that the following motorist breached the standard of care set forth in LSA-R.S. 32:81 and was negligent. Mart v. Hill, 505 So.2d 1120, 1123 (La.1987); Phipps v. Allstate Ins. Co., 05-651, p. 5 (La.App. 5 Cir. 2/27/06), 924 So.2d 1081, 1084. When the rear-end collision presumption applies, the following motorist can escape liability by proving that the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid. Robinson v. Flowers, 41,798, pp. 4-5 (La.App. 2 Cir. 1/24/07), 949 So.2d 549, 553. A driver who changes lanes without first determining that the move can be completed safely and then is struck from the rear by a following car cannot rely on the rear-end collision presumption to shift the burden to the following driver. Easter v. Direct Ins. Co., 42,178, p. 10 (La.App. 2 Cir. 5/9/07), 957 So.2d 323, 329; Daigle v. Mumphrey, 96-1891 (La.App. 4 Cir. 3/12/97), 691 So.2d 260, 263.

In the present case, Mr. Artis changed lanes just prior to the accident. However, he testified that he determined the movement could be made safely prior to the lane change. At trial, Mr. Artis testified that while traveling in the center lane, he saw a car ahead of him “fish-tail.” He testified that there was enough room ahead in the right lane to stop and the headlights in the right lane were far back enough to allow him to safely move into the right lane. Mr. Artis stated that he changed lanes and brought his tractor-trailer to a complete stop, which takes approximately 100 yards. According to Mr. Artis, Mrs. Vu struck his vehicle from behind after he came to a complete stop.

The photographs show that Mr. Artis’ tractor-trailer had fully moved into the right lane, and even further onto the right shoulder, when Mrs. Vu struck the back of the tractor-trailer. The photographs of the accident scene also support Mr. Artis’ assertion that another accident was happening ahead of him, because it shows a wrecked vehicle a short distance ahead in the median.

Defendants assert that after Mr. Artis safely changed lanes, Mrs. Vu did not fulfill her duty of care to keep a proper lookout, to keep her vehicle under control, | sand to avoid all foreseeable danger. However, Mrs. Vu testified that she was clearly focused, but Mr. Artis swerved in front of her and, although she slammed on her brakes, she could not stop without striking his tractor-trailer.

The jury was faced with two different versions of the accident. Mr. Artis testified that there was sufficient room for him to safely merge into the right lane, and that he brought his vehicle to a complete stop before being struck from behind by Mrs. Vu. Mrs. Vu testified that she was paying attention when Mr. Artis suddenly swerved in front of her, and she slammed on her brakes but could not avoid striking his vehicle. Apparently, the jury found Mr. Artis’ version of the accident to be more credible. Based on Mr. Artis’ testimony and the photographs, it was not unreasonable for the jury to believe that Mr. Artis safely and legally moved into the right lane and was not at fault for the accident. As stated above, where there are two permissible views of the evidence, the jury’s choice between them cannot be manifestly erroneous or clearly wrong.

Plaintiff contends that there are several cases involving the same set of facts in which the person “in defendant’s shoes” was found to be 100% at fault. However, the cases cites by plaintiff are distinguishable and not binding on this Court. For instance, plaintiff cites Mays v. Safeway Ins. Co., supra, in which the Second Circuit found the driver who changed lanes prior to the accident to be 100% at fault. However, in Mays, when the driver changed lanes, it caused the other driver to run off the road in order to avoid a collision, whereas in the instant case, there was a rear-end collision after Mr. Artis changed lanes. We have reviewed each of the cases cited by plaintiff, and none of these cases is precisely on point and/or binding on this Court.

Considering the testimony and evidence in this matter, we cannot say that the jury was manifestly erroneous or clearly wrong in finding that Charles Artis |3was not negligent or at fault for the accident in this case. Accordingly, the trial court’s judgment in accordance with the jury’s verdict is affirmed.

DECREE

For the foregoing reasons, we affirm the trial court’s December 12, 2008 judgment, which was rendered in accordance with the jury’s verdict, finding that Mr. Artis was not negligent with regard to this accident and that defendants are not liable in this case.

AFFIRMED.


author: CLARENCE E. McMANUS, Judge.

text:
    Hans WEDE v. NICHE MARKETING USA, LLC, A Louisiana Limited Liability Company and Rodney C. Whitney, Jr.
    No. 09-CA-146.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.
    Rehearing Denied March 2, 2010.

      Mark C. Landry, Newman, Mathis, Brady, & Spedale, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    James M. Garner, Elwood F. Cahill, Jr., John T. Balhoff, II, Ryan 0. Luminais, Sher Garner Cahill Richter Klein & Hilbert, Attorneys at Law, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

12AppeIlants, James and Deborah James, file this appeal from the trial court’s grant of Hans Wede’s Motion to Authorize Seizure of Property.

STATEMENT OF THE CASE

On November 22, 2005, Hans Wede filed a Petition to Make a Foreign Judgment Executory in the Fortieth Judicial District Court of St. John the Baptist Parish seeking to have a North Carolina judgment made executory against Niche Marketing USA, LLC, a Louisiana limited liability company, and Rodney C. Whitney, Jr. The North Carolina judgment was for $52,000.00 plus interest of 8% from August 19, 2005 until paid, attorney fees of $7,500.00 and court costs. The trial court signed a judgment on November 22, 2005 making the North Carolina judgment exec-utory in Louisiana. Neither Niche Marketing USA nor Whitney made any payments towards this judgment. Wede’s Louisiana counsel filed the judgment for recordation in the Mortgage and Conveyance Office of the Clerk of Court for St. John the Baptist Parish on December 8, 2005.

At the time the judgment was recorded, Whitney and his wife owned immovable property in LaPlace, Louisiana. The Whitneys then sold that property to Robert and Deborah James on January 31, 2007. The act of sale was recorded in the conveyance records of St. John the Baptist Parish on February 26, 2007. On |sMay 16, 2007, Wede’s counsel sent a letter to the James advising them of the existing judgment against the property they had purchased and recommending that they contact their title insurance company.

Thereafter, Wede’s counsel discovered that the judgment against Whitney had been recorded on December 8, 2005, however, it had been filed in the conveyance records, rather than the mortgage records. Therefore, the judgment was not noted when the Whitneys perfected the sale of the property to the James. The Clerk of Court of St. John the Baptist Parish was advised of the problem and the judgment was correctly filed in the mortgage records.

On June 8, 2007, Eliana Defrancesch, the Clerk of Court for St. John the Baptist Parish, executed an affidavit stating that Instrument # 261091, which was the judgment at issue obtained by Wede against Whitney, was recorded in the conveyance records on December 8, 2005 and was not recorded in the mortgage records until May 3, 2007. The affidavit further provided that at the time of recordation of the judgment on December 8, 2005, there were no instructions provided to the clerk of court as to where the document should be recorded. The document was ultimately recorded in the conveyance records at the time of filing on December 8, 2005.

On September 7, 2007, Wede filed a Motion to Authorize Seizure of Property against Robert and Deborah James. Wede asserted he was the judgment creditor of Niche Marketing USA and Whitney based on the November 22, 2005 judgment of the Fortieth Judicial District Court, which was recorded in St. John the Baptist Parish, and thus, he had a judicial mortgage on all immovable property owned by Niche Marketing USA and Whitney, including the property sold to the James.

|4In his Motion to Authorize Seizure of Property, Wede argued the clerk of court’s error of recording the judgment in the conveyance records instead of the mortgage records did not impact the validity of the judicial mortgage, and further, the transfer of the property from the Whit-neys to the James didn’t impact the judicial mortgage. Wede argued he is entitled to seize the property pursuant to the judicial mortgage.

The James filed an opposition to Wede’s motion on October 11, 2007 arguing the judgment was recorded in the conveyance records only and not properly recorded in the mortgage records until after the Whit-neys sold the property to the James. Therefore, the James argued Wede’s judgment had no effect on their ownership of the property. The James filed a supplemental opposition on September 9, 2008 explaining the computerized process of filing a document into the mortgage and conveyance records in the clerk of court’s office of St. John the Baptist Parish. The James explained that the error occurred when the choice of “CO” for conveyance records was made in the clerk’s computer, instead of “MO” for mortgage records at the time of filing of the judgment. Since the document had been filed in the conveyance records and not the mortgage records prior to the sale of the property, the James argued Wede had no valid judicial mortgage permitting the seizure of the property they purchased.

An evidentiary hearing was held October 13, 2008 in the trial court. The trial court issued a judgment on November 21, 2008 granting Wede’s motion to authorize seizure of the property. For the reasons which follow, we reverse the trial court’s judgment granting Wede’s motion to authorize seizure of the property.

DISCUSSION

On appeal, the James contend the judgment in favor of Wede and against Whitney was only recorded in the conveyance records and was not recorded in the | .^mortgage records until after they purchased the property from the Whitneys. Therefore, no valid judicial mortgage was effective against the property when it was purchased. The James argue this judgment was not mis-indexed, but rather was mis-recorded only in the conveyance records and not recorded in the mortgage records. Therefore, they contend this judgment is not effective against them as third parties to the judgment.

In opposition to the appeal, Wede argues the judgment was properly recorded in the clerk’s office by his counsel. He contends the clerk’s office then mis-in-dexed the judgment under the conveyance records instead of the mortgage records, but this is not a mis-recording or non-recording of the judgment. Wede argues that since the judgment was properly filed with the clerk of court, the judicial mortgage applies to the property, even after the James purchased the property.

First, we agree in part with Wede and find his judicial mortgage was filed and valid upon delivery to the clerk in the mortgage and conveyance office for filing in the records. La. C.C. art. 3347 states, in part, “[a]n instrument is filed with a recorder when he accepts it for recordation in his office.” In this case, Wede presented the November 22, 2005 judgment to the St. John the Baptist Clerk of Court’s office for recordation on December 8, 2005. Thus, this instrument, or judgment, was properly filed for the purposes of La. C.C. art. 3347.

However, we also find, based on the testimony and evidence presented, that the judicial mortgage did not attach to the property owned by the Whitneys and purchased by the James, because it was mistakenly filed in the conveyance records and not in the mortgage records. The St. John the Baptist Parish mortgage and conveyance office has a specific system in which instruments are categorized into either the mortgage index or the conveyance index. The Clerk of Court, Eliana IfiDefrancesch, and a deputy clerk, Felicia Feist, testified by deposition that the mortgage and conveyance records were all kept by computer and were no longer maintained in paper books. They further explained that once a document is filed, it goes to a recording clerk and is given an instrument number with a time and date that is placed on the document. A clerk then indexes the document by choosing either “CO” for conveyance or “MO” for mortgage in the computer. The document is then verified and released and then scanned, stamped and released to the public. Defransesch believes that in this case, “CO” was chosen in the computer instead of “MO”. The trial court characterized this as “mis-indexing” as opposed to “mis-re-cording”. We disagree with the trial court’s characterization of this error as “mis-indexing”. We find this judgment was simply not recorded in the mortgage records. It was mistakenly recorded in the conveyance records. The affidavit of De-fransesch provides that the judgment was recorded in the conveyance records on December 8, 2005 but not recorded in the mortgage records until May 3, 2007.

The James purchased the property in question on January 31, 2007 and that act of sale was recorded in the conveyance records on February 26, 2007. At that time, a search of the mortgage records of St. John the Baptist Parish would not have revealed the November 22, 2005 judgment against Whitney. Therefore, we find that, at the time of the sale of the property, the judicial mortgage was not applicable or attached to the property because it was not filed in the mortgage records, but was only filed in the conveyance records.

We do note that Wede’s counsel properly presented the judgment to the clerk’s mortgage and conveyance office for recor-dation. Thereafter, it was mistakenly labeled and placed in the conveyance records due to a clerical error by the clerk’s office. Even though Wede’s counsel properly presented the judgment |7for recording, we must find that the James had no knowledge of the existence of the judicial mortgage since it was only recorded in the conveyance records and not in the mortgage records. Since we find the judgment is not effective as to this property at the time it was sold to the James, Wede is not entitled to seizure of the property pursuant to the judgment.

Therefore, we reverse the trial court’s judgment and find the judicial mortgage in favor of Wede is not applicable to this property. We note that any cause of action by Wede to recover on this judgment is against the St. John the Baptist Clerk of Court’s office.

Accordingly, we reverse the trial court’s judgment granting Wede’s Motion to Authorize Seizure of Property.

REVERSED.