author: J^FITZSIMMONS, J.

text:
    Virginia COOPER v. LOUISIANA STATE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Parish of Ascension, and ABC Insurance Company.
    No. 2003 CA 1847.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Writ Denied Nov. 8, 2004.

      David L. Bateman, Baton Rouge, Counsel for Plaintiff/Appellant Virginia Cooper.
    Charles C. Foti, Jr., Attorney General, John H. Ayres, III, Assistant Attorney General, Baton Rouge, Counsel for Defendant/Appellant State of Louisiana, through the Department of Transportation and Development.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

Virginia L. Cooper (Jenny), plaintiff/appellant, appeals portions of a jury verdict against defendant, State of Louisiana, through the Department of Transportation and Development (DOTD). DOTD responsively contests the allocation of fault. Following our review of the facts and applicable law, we affirm, in part, and amend, in part.

FACTS

On July 6, 1997, Jenny was traveling in a southerly direction along Louisiana Highway 431 (Hwy. 431). She was involved in a single-vehicle accident as she rounded a curve, colloquially known as “Gator Glass curve,” where Hwy. 431 intersected with Louisiana Highway 931 (Hwy. 931). The experts for both parties agreed that Jenny’s vehicle took the following path: the right passenger side tires of Jenny’s vehicle exited the travel lane as she proceeded through the curve; Jenny over corrected to the left; Jenny then corrected to the right; the vehicle proceeded into the passenger-side ditch, whereupon it turned over. Jenny sustained a closed head injury, a facial laceration with an open left radius fracture, a broken radial bone on her left arm, and a crushed ulnar bone. She required multiple surgeries.

Following trial, the jury found Jenny to be 75% at fault; it attributed 25% fault to DOTD. Jenny was awarded $87,500.00 in damages as a result of the accident, in the following distribution: $40,000.00 in past medical expenses, $20,000.00 for future medical expenses, $5,000.00 in lost wages, $5,000.00 for loss of earning capacity, $7,500.00 for physical pain and suffering, $5,000.00 for mental pain, and $5,000.00 for disability and disfigurement. Applying the comparative fault allocation, Jenny was awarded a total sum of $21,875.00.

On appeal, Jenny contests the jury’s allocation of 75% fault to her, the legal propriety of opinion testimony given by the investigating police officer, and the 1 ¡¡failure of the jury to award additional damages for physical and mental pain and suffering, wage loss, and disability and disfigurement. DOTD appeals the attribution of 25% fault to DOTD by the jury.

TESTIMONY BY POLICE OFFICER

it is submitted by Jenny that the court committed prejudicial error in allowing Police Officer Larry Perdue to give his opinion as to the cause of the accident. Trooper Perdue was one of the primary investigating officers of the subject accident. He was not qualified as an expert in accident reconstruction. In an oral pretrial motion, counsel for Jenny sought to exclude from evidence any opinion by Trooper Perdue as to the causation of the accident in question. . The court determined that it would “allow each state trooper to testify as to his observation at the scene of the accident and his opinion as to what was the cause of the accident based on his experience in accident investigation as a state trooper, not as a reconstruction expert.”

In direct examination, Jenny’s counsel asked Trooper Perdue to indicate what he was able to determine insofar as the path of the vehicle “based on the path or the tracks that [he] saw[.]” Trooper Perdue’s description of the course charted by Jenny’s vehicle parallels the conclusions reached by the experts for the opposing parties.

In response to questioning on cross-examination by counsel for DOTD, Trooper Perdue indicated that he had been a state trooper for six or seven months. He had received two weeks of training on the method to conduct an accident investigation subsequent to graduating from the police academy. He also stated that he had received prior accident investigation experience during an eight-year period as a deputy in Georgia. In Louisiana, he had investigated between twenty and forty accidents prior to handling Jenny’s accident.

|¿When asked to address the contributing factors indicated on the investigative report, Trooper Perdue stated that the primary causative factor for the collision was the vehicle’s departure from the road after negotiating the curve. This fact was not disputed by the parties. Trooper Per-due also indicated that he had looked for potholes in the roadway that night and noted no defects on the roadway. Finally, Officer Perdue testified that the secondary factor listed on the accident report was “careless operation of the vehicle.” This court interprets this testimony by Trooper Perdue to have traversed an evidentiary line into the arena of a conclusion, which is generally reserved for the province of a jury or expert.

Louisiana Code of Evidence article 701 permits non-expert testimony in the form of opinions or inferences that are rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. Moreover, opinion testimony has been permitted by police officers who are not experts based on training, investigation, perception of the scene, and observation of physical evidence. Wingfield v. State, Department of Transportation and Development, 2001-2668, p. 19 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, 801, writs denied, 2003-1313 (La.5/30/03), 845 So.2d 1059, 2003-0339 and 2003-0349 (La.5/30/03), 845 So.2d 1060, certiorari denied, 540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282 (citing Whetstone v. Dixon, 616 So.2d 764, 768 (La.App. 1 Cir.1993), writ denied, 623 So.2d 1333). A violation of La. C.E. 701 or a finding of undue prejudice on the part of the witness, vel non, constitutes a determination within the discretion of the trial court. Wingfield, 2001-2668, p. 19, 835 So.2d at 802. As in Wingfield, this court concludes that wherever Trooper Perdue’s testimony might have strayed into opinion beyond the parameters of article 701, such testimony was redundant to the testimony of DOTD’s qualified expert. For these reasons, we do not perceive the testimony by Officer Per-due to be an abuse of the court’s discretion, such that it would form a basis for reversible [serror or a de novo review. Nevertheless, in some instances, incorrect evidentiary rulings may form the basis for legal errors.

ALLOCATION OF FAULT

The collision occurred at approximately 1:30 a.m. There was no evidence of alcoholic consumption. It was the first time Jenny, a recent high school graduate, had attempted to negotiate the subject curve at night.

James R. Clary, Sr., an expert in highway design, safety, signing and maintenance, testified on behalf of Jenny. Mr. Clary portrayed the creation of an unreasonably dangerous condition due to the confluence of a 9 to 10 degree angle of the curve, as opposed to the acceptable 6 degrees; the loss of super elevation in curve; unevenness in pavement; lack of proper maintenance of potholes; nearly invisible markings of the pavement; fog lines; center lines; the absence of a no-passing line at the time of the accident; and an unguarded culvert. He concluded that Jenny drifted off the main travel portion of the road just north of the gore area. A “gore” area was defined as the section where Hwy. 431 and Hwy. 931 “[came] together and ... the area between the two.” Mr. Clary further noted that the gore areas of roadways typically collect gravel, debris, and sand. He noted that the super elevation of the highway curve was not consistent, the shoulders were more narrow than the “as built” plans indicated, and the ditch for the slope was much sharper than the “as built” plans stated. Additionally, on the south end where the collision occurred, he stated that a ridge had formed that forced the highway to be elevated on the side.

An expert in accident reconstruction, John Rigol, Jr., testified that a reasonably prudent person could not have successfully recovered from the departure of Hwy. 431’s main roadway once in the gore area at its intersection with Hwy. 931. Mr. Rigol similarly attributed this condition to the gore area’s lack of super elevation, the gravel, and a “ball bearing” effect caused by the potholes. | ^Referring to the yaw marks in photographs, Mr. Rigol stated that they proved Jenny did not simply drive straight off the highway. He explained that the potholes were critical because the prevalence of their undulations caused a constant compression of the suspension and a loss of friction. Mr. Rigol opined that the contact of Jenny’s right tires with the severely deteriorated gore section of the highway produced a loss of friction, which contributed to Jenny’s over-correction to the left. Her next attempt to redirect the vehicle to the right resulted in her vehicle striking the open culvert on the right side of the road and flipping over.

Mr. Clary’s and Mr. Rigol’s testimony was contradicted by Joseph Blaschke, Ph.D. Dr. Blaschke was accepted as an expert in highway design and accident reconstruction. He conceded that it did not appear that Jenny drove faster than 45 miles per hour in the curve. His analysis differed, however, on the issue of the cause of Jenny’s departure from the main portion of the highway. Dr. Blaschke opined that no evidence demonstrated that Jenny’s vehicle began to slide at the beginning of the curve. In Dr. Blaschke’s evaluation, the shoulder was reasonably safe. Dr. Clary believed that Jenny’s inattentiveness caused her to drift off the road. Due to improper steering, she then overcorrected. He also questioned whether Jenny actually entered the gore area.

Jenny’s accident took place in 1997; therefore, the provisions of La. R.S. 9:2800 are controlling vis a vis a claim against DOTD. Although DOTD did not address the application of La. R.S. 9:2800 in its argument denying the existence of liability, a 1995 amendment of the statute requires a plaintiff to demonstrate that a public body had actual or constructive notice of the defective condition, in addition to proof of custody, a defective condition, and the creation of an unreasonable risk or a claim based on negligence. See Irion v. State, Department of Transportation and Development, 1998-2616, p. 8 (La.App. 1 Cir. 5/12/00), 760 So.2d 1220, 1227-1228, writ denied, 2000-2365 (La.11/13/00), 773 So.2d 727, and Rogers v. State, Department of Transportation and Development, 2000-1424, p. 6 (La.App. 4 Cir. 3/7/02), 813 So.2d 495, 501-502, writ denied, 2002-0986 (La.6/14/02), 817 So.2d 1157.

Albert Shields, the highway maintenance superintendent for DOTD, agreed that Gator Glass curve required a significant amount of patching ánd that the shoulder repairs had been chronically problematic. He testified that he rode along Hwy. 931 and Hwy. 431 each week to check on roadway maintenance needs. Additionally, a DOTD “Complaint Record” was introduced into evidence on behalf of Jenny. The complaint record revealed the following relevant complaints to DOTD: notice of a large hole and several small holes at the intersection of Hwy. 431 and Hwy. 931 on September 23, 1996 (resulting in work by DOTD being “completed” by October 11, 1996); on February 13, 1997, a complaint about two potholes in both the north and southbound lanes (work was completed on February 14, 1997); on April 1, 1997 a report of a “bad pothole” on Hwy. 931 located one-fourth mile south of Hwy. 431; on June 20, 1997, notice that a driver hit a bad pothole and damaged two rims of his car in the southbound lane of the area where Hwy. 431 joins Hwy. 931 (work was completed by June 25, 1997); and on July 3, 1997, two complaints consisting of notice of the existence of bad potholes from “Gator Glass” to Port Vincent and another notice about potholes on Hwy. 431 at the “Gator Glass” area (the work assignments were completed on that same day). Three days following the completion of work at the Gator Glass area, the instant accident involving Jenny occurred. The department records additionally indicated that all work orders for that area had been completed as of July 12, 1997, six days after the accident made the subject of this appeal. Mr. Shields further testified that his staff returned to' repair potholes two weeks later. Given [RMr. Shields’ stated routine review of the intersection of Hwy. 931 and Hwy. 431, the recurring complaints about roadway defects in the subject area, and particularly those at the “gore” area, as well as the occurrence of one of the complaints only three days prior to the accident, we find that DOTD had both actual and constructive notice of an unreasonably dangerous condition.

It is a well-established jurisprudential rule that a court of appeal may not set aside á trial court or a jury’s findings of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In situations involving a conflict in the testimony, reasonable determinations of credibility and reasonable inferences of fact should not be disturbed, even if the appellate court might consider its own evaluations and inferences to be as reasonable. Id. In the case under review, this court does not find that the jury’s conclusion was unreasonable. Faced with opposing theories, the jury apparently embraced the viewpoint that Jenny was primarily responsible for the accident when she left the main roadway and was unable to redirect her vehicle back to the proper lane; however, it also attributed a portion of the cause of the accident to an unreasonably dangerous condition in the gore area. We cannot construe the jury’s allocation of fault between the parties to be an unreasonable one. The evidence supports the allocation of 75% fault to Jenny and 25% fault to DOTD.

PAIN AND SUFFERING; DISABILITY AND DISFIGUREMENT

The jury initially awarded no damages for past, present, and future physical and mental pain and suffering, past wage loss, and disability and disfigurement. After the trial court judge returned the verdict sheet to the jury to establish general damages to correlate with the awards of special damages, the jury responded with an award of $7,500.00 for physical pain and suffering, $5,000.00 for mental pain and suffering, $5,000.00 for past wage loss, $5,000.00 for loss of earning capacity, and $5,000.00 for disability and disfigurement. Thus, the jury awarded a total ^general damages award of $17,500.00 to Jenny. With the exception of loss of earning capacity, Jenny has appealed the awards of general damages as inadequate.

Our review of the extent of injuries, treatment, and permanent disability and disfigurement to Jenny leads to the conclusion that the award given by the jury was so low that it fell beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular person under the particular circumstances, given the extensive injury, surgeries, pain and suffering, and impairment incurred. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cer-tiorari denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, we find that the jury award represents a clear abuse of its discretion. Id.

Dr. Charles S. Walker, an orthopedic surgeon, first treated Jenny in the emergency room. She presented with a closed head injury, facial laceration, crushed left ulnar bone, open left radius fracture, and significant abrasion or burn of the distal third of her forearm. Additionally, there was swelling of the forearm that required splitting of the facia. During the process of taking a CT scan, Jenny had a seizure and heart arrhythmia.

Six screws were placed in Jenny’s hand to reassemble the damaged bones. Following surgery, the ulnar fracture failed to heal as well as expected; therefore, a second operation was performed on July 9, 1997 to close the volar (underside) portion of the arm. Unfortunately, Dr. Walker was unable to fully close the back side of her forearm. On July 11, 1997, a third surgery was performed by a plastic surgeon to close the back side. This surgery required skin debridement and a split-thickness skin graft. Jenny’s hand continued to exhibit significant swelling as of |inJuly 17, 1997. Although the fracture had healed three months after the accident, x-rays performed in January 1998 showed increased bone formation detrimental to the flexibility of the ulnar. Another surgery was recommended to excise the extra bone; however, the instability of the grafted skin over the wrist complicated the procedure. The surgical procedure had not been performed by the time of the trial.

Jenny complained of pain when she lifted trays and carried food at her job at the Sonic Restaurant. She stated that she ultimately quit working at Sonic for that reason. Dr. Walker opined that Jenny would continue to have pain whenever she held objects for a long period of time or lifted anything heavy. Dr. Walker also stated that she would have significant long-term impairment of motion. Jenny would also suffer from arthritis in the hand area, which he commented she should already be experiencing. He opined that she would have permanent scarring on her arm from the surgeries and grafts. Dr. Walker stated that Jenny would not be able to perform jobs involving any substantial hand mobility or strength.

Jenny testified at trial that her current vocational goals were a career in the field of computer office work, for which she had been trained in school. Dr. Walker stated that long term use of the computer might present problems for Jenny. The recommended future surgery would probably improve the limited rotation of the arm or increase the motion; however, he did not expect her flexion or rotation of the forearm to improve. Additionally, he noted that a worsening of her condition might require a fusion of the wrist. Finally, Dr. Walker noted that in addition to the job limitations, Jenny’s injuries would forever make it difficult for her to perform everyday rotational tasks, such as opening doors, turning keys to start engines, or opening jars.

Jenny’s mother, Karen J. Cooper, testified that following her return from the hospital, her daughter was afraid. She had to be bathed and have her wound dressings performed by another person. Jenny also stated that her mother assisted |T1her with her personal needs, such as driving, washing her hair, and changing her bandages. As of the trial date, Jenny indicated that she continued to have trouble with activities, such as lifting heavy objects, holding babies, cleaning heavy dishes. She remained unable to open a car door with her left hand.-

A review of comparable cases involving injuries to the arm and wrist presents the following general damage awards: $300,000.00 in Riser v. Acadiana Limousine Service, 96-1687 (La.App. 3 Cir. 4/30/97), 693 So.2d 330, writ denied, 97-1420 (La.9/19/97), 701 So.2d 173, which involved a comparable medical diagnosis, treatment, and disabilities; $400,000.00 in Rivere v. Union Pacific Railroad Company, 93-1132 (La.App. 1 Cir. 10/7/94), 647 So.2d 1140, writ denied, 95-0292 (La.3/24/95), 651 So.2d 295, to an adult who had to undergo seven operations on his arm and a permanent partial disability; and $160,000.00 in Hammock v. Louisiana State University Medical Center in Shreveport, 34,086 (La.App. 2 Cir. 11/1/00), 772 So.2d 306, to a young girl who underwent multiple surgeries involving the radial head of her arm and who had lost 50% supination and 70% pronation of her wrist. Considering the foregoing, this court finds that the lowest general damages award that the jury could have reasonably awarded would have been $155,000.00 to be divided into the classifications of pain and suffering and disability and disfigurement.

Pain and Suffering

Factors to be reviewed in the assessment of the quantum awarded for pain and suffering are the severity and duration thereof. Fleniken v. Entergy Corporation, 2000-1824, p. 29 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175, 1194. The undisputed evidence demonstrates that Jenny continued to experience physical pain and suffering from the time of her injury until the time of trial. Moreover, 112Pr. Walker’s prognosis indicated that the pain would be long-term and probably worsen in the future as a result of arthritis. He recommended another surgery for partial improvement, and he opined that there was also a possibility of the need for a fusion of the wrist in the future. Notwithstanding consideration of the evidence in a light most favorable to DOTD, we deem the lowest sum for past, present and future physical and mental pain and suffering to be $70,000.00. See Youn, 623 So.2d at 1260.

Disability and Disfigurement

Dr. Walker declined a request to assign a specific percentage of disability. However, he pronounced that Jenny’s su-pination of her wrist was 18 degrees, as compared with a normal supination of 80-90 degrees. Jenny’s pronation was 36 degrees, as opposed to the normal range of 85-90 degrees. Finally, she was capable of 16 degrees of flexion when she bent her palm down, compared to the normal 40 to approximately 80 degrees. Dr. Walker stated that she had “significant limitation of ability to bend her hand down.” Thus, Jenny had approximately 20% of normal supination of the wrist, approximately 40% of normal wrist pronation capability, and her wrist was capable of only about 1/3 the normal flexion. Absent a future successful surgery, all of these limitations were considered permanent. Dr. Walker also noted that the substantial scar on Jenny’s arm would be permanent.

Although no expert testimony was elicited to give a particular sum for the percentage of disability or disfigurement, the jury apparently considered Dr. Walker’s testimony in making its disability and disfigurement award of $5,000.00. Again the jury’s award of $5,000.00 for an injury that caused significant impairment of motion in Jenny’s forearm and wrist is so depressed that it constitutes an abuse of discretion. Jenny will have to live the rest of her life with an arm that is badly discolored, scarred, and incapable of performing myriad hsvoutine functions, such as the rudimentary task of opening a car door. We increase the sum for disability and disfigurement to $85,000.00, which is the lowest amount reasonable relative to comparable jurisprudential awards.

DECREE

In sum, the judgment of the trial court assigning 75% fault to Virginia Cooper and 25% fault to the State, Department of Transportation and Development, is affirmed. The general damages award is amended to $155,000.00. In all other respects the judgment of the trial court is affirmed. Costs associated with this appeal are assessed to the State, Department of Transportation and Development, in the sum of $3,250.00.

AFFIRMED, IN PART; AMENDED, IN PART.

      . The provisions contained in La. R.S. 9:2800, as revised pursuant to 1995 La. Acts Nos. 1328 and 828, have been jurisprudentially deemed substantive in nature. Irion v. State, Department of Transportation and Development, 1998-2616, p. 8 (La.App. 1 Cir. 5/12/00), 760 So.2d 1220, 1227. The amendment is not applicable to incidents occurring prior to November 23, 1995, the effective date of the amendment.

        . Past lost wages do not constitute general damages. Although Jenny argues that the failure of the jury to initially award any sum for past lost wages constituted legal error, she does not appeal the jury's ultimate reformed award of $5,000.00 in past lost wages. Accordingly, the award of $5,000.00 for past lost wages remains unchanged. It is also noted that loss of earning capacity, which constitutes another special damage, is not raised as an assignment of error on appeal.

      . This sum excludes the additional $100,000.00 awarded in punitive damages.


source: Caselaw Access Project

author: I ¡¡GAIDRY, J.

license: Public Domain

text:
    TOWER CREDIT, INC. v. Wendy TULLIER a/k/a Garcia (Garza).
    No. 2003 CA 1860.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Richard D. Bankston, Baton Rouge, Counsel for Plaintiff/Appellant Tower Credit, Inc.
    Thomas A. Lane, Baton Rouge, Counsel for Defendant/Appellee Wendy Tullier a/k/a Wendy Garcia (Wendy Garza).
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   I ¡¡GAIDRY, J.

This is an appeal from a trial court judgment sustaining an exception of prescription. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 29, 1991, Wendy and Dean Tul-lier signed a promissory note in favor of Tower Credit, Inc. (“Tower”) as co-makers. The Tulliers defaulted on the note, and Tower filed suit against Dean Tullier. This suit sought to enforce both the note on which the Tulliers were co-borrowers and a second note signed only by Dean Tullier.

On August 19, 1993, the Port Allen City Court rendered judgment in favor of Tower and against Dean Tullier. Tower was unable to enforce the judgment against Dean Tullier, and Mr. Tullier ultimately filed for bankruptcy relief on May 18,1995. The United States Bankruptcy Court for the Middle District of Louisiana granted Dean Tullier a discharge on April 15, 1997.

On January 3, 2003, Tower filed suit against Wendy Tullier to enforce the promissory note signed by both Wendy and Dean Tullier. That suit was filed under the same docket number as the previous suit filed against Dean Tullier. Wendy Tullier filed an exception of prescription. During a hearing on the exception of prescription, Tower argued that the suit filed against Dean Tullier interrupted prescription against Wendy Tullier as a solidary obligor and the bankruptcy filed by Dean Tullier did not affect the interruption of prescription. On April 30, 2003, the trial judge sustained the exception of prescription and dismissed Tower’s suit against Wendy Tullier.

[¡¡negated the interruption of prescription created when suit was filed against Dean Tullier. Tower filed this appeal, asserting that the trial court erred in sustaining Wendy Tullier’s exception of prescription and in dismissing its petition, as well as in ruling that the bankruptcy filed by Dean Tullier

DISCUSSION

Actions on promissory notes, whether negotiable or not, are subject to a libera-tive prescription of five years. This prescription commences to run from the day payment is exigible. La. C.C. art. 3498. The promissory note signed by both Dean and Wendy Tullier states that the parties agree to be bound solidarily. A solidary obligation is one in which each obligor is liable for the whole performance. La. C.C. art. 1794. Prescription is interrupted when the obligee commences action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. The interruption of prescription against one solidary obligor is effective against all solidary obligors. La. C.C. art. 1799. Therefore, Tower’s action in filing suit timely against Dean Tullier interrupted prescription against Wendy Tullier as well.

Tower claims that although more than five years passed between the time payment became exigible and the date suit was filed against Wendy Tullier, the suit was timely because prescription was interrupted by the suit filed against Dean Tullier. An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. La. C.C. art. 3463. The contested issue in this case, therefore, is whether the suit against Dean Tullier was still pending at the time suit was filed against Wendy Tullier.

The trial court was of the opinion that the rendering of the August 19, 1993 judgment against Dean Tullier did not end the suit’s pendency. The court held, however, that the discharge of Dean Tullier by the bankruptcy court definitively ended the suit against him, thereby beginning the running Lof a new prescriptive period against Wendy Tullier. Suit was not filed against Wendy Tullier for more than five years after the discharge was granted to Dean Tullier by the bankruptcy court; therefore the trial court found that the action against Wendy Tullier had prescribed.

While we agree that the action against Wendy Tullier has prescribed, we disagree with the reasoning of the trial court that prescription began to run anew with Dean Tullier’s discharge in bankruptcy. La. C.C. art. 3463 provides that the interruption of prescription continues as long as the suit is pending. The phrase “as long as the suit is pending” which is used in article 3463 was interpreted by the Louisiana Supreme Court in Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986). Citing Black’s Law Dictionary (5th ed.1979) at page 1021, the court found “an action or suit is ‘pending’ from its inception until the rendition of final judgment.” Black’s Law Dictionary defines “pendency” at page 1020, as “the state of an action, etc., after it has begun and before the final disposition of it.” Final disposition connotes a state of affairs “such that nothing further remains to fix the rights and obligations of the parties.” Hebert v. Doctors Memorial Hospital, 486 So.2d at 720. Thus, a suit is no longer pending after final judgment. The judgment rendered in this case became final and prescription ceased to be interrupted when all appeal delays had expired following the August 19, 1993 judgment. Thus, more than five years passed between the time prescription began to run anew and the time suit was filed against Wendy Tullier in January of 2003. Tower’s assignments of error are without merit.

DECREE

For the above reasons, we affirm the April 30, 2003 judgment of the trial court sustaining Wendy Garcia’s exception of prescription and | ^dismissing Tower’s suit. Costs of this appeal are assessed to Tower Credit, Inc.

AFFIRMED.


author: [ ¡¡PARRO, J.

text:
    Michael FALCON, Sr. v. TOWN OF BERWICK.
    No. 2003 CA 1861.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Edward J. Cloos, III, Covington, for Plaintiff-Appellant Michael Falcon, Sr.
    Angela M. Barbera, James L. Pate, La-Borde & Neuner, Lafayette, for Defendants-Appellees Town of Berwick and St. Paul Mercury Insurance Company.
    Allen A. McElroy, Jr., McElroy & Duffy, Berwick, for Defendant-Appellee Town of Berwick.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   [ ¡¡PARRO, J.

The plaintiff appealed from a judgment sustaining the defendants’ peremptory exception and dismissing his claim for damages on the ground of no right of action. For the following reasons, the judgment is reversed, and the case is remanded to the trial court with instructions.

Factual and Procedural Background

At approximately 9:00 p.m. on October 21, 2001, Michael Falcon, Jr. was arrested for disturbing the peace, taken into custody by the Berwick Police Department, and placed in the Berwick jail. Early the following morning, he was found hanging in his cell. Michael Falcon (Falcon) filed a survival and wrongful death action against the Town of Berwick and its insurer, St. Paul Mercury Insurance Company, in connection with the death of his son (the deceased). Falcon alleged that the Town of Berwick through its police department was negligent in various respects including failing to observe and monitor the deceased, who was intoxicated, in his jail cell.

With a motion for summary judgment by Falcon on the issue of liability pending before the trial court, the defendants filed a peremptory exception raising the objection of no right of action, combined with an alternative motion for summary judgment, based on the fact that the deceased had left a child, Amber Micheál Falcon (Amber), whose date of birth was September 21, 2001. In connection with their filing; the defendants attached a copy of the deceased’s certificate of death, Amber’s certificate of birth, and an affidavit of paternity that had been executed by the deceased. The trial court found that there was sufficient documentation to establish that the deceased was the biological father of Amber at the time of his death, whom he had acknowledged by written act. Furthermore, it recognized that the birth certificate had been issued in accordance with his acknowledgement of paternity. After the hearing, the trial court concluded that Falcon was not the proper party to proceed with the suit. Falcon appeals from a judgment granting the exception of no right of action/alternative motion for summary judgment in favor of the defendants and dismissing his suit with prejudice. | ¡¡This judgment also denied Falcon’s motion for summary judgment and the defendants’ motion to strike on the ground of mootness.

No Right of Action

On appeal, Falcon contends the trial court erred in sustaining the defendants’ exception raising the objection of no right of action. The peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. See LSA-C.C.P. art. 927(A)(5); Falco Lime, Inc. v. Plaquemine Contracting Co., Inc., 95-1784 (La.App. 1st Cir.4/4/96), 672 So.2d 356, 359. When considering the exception, we ask whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance. The exception does not raise the question of the plaintiffs ability to prevail on the merits nor the question of whether the defendant may have a valid defense. Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 597 So.2d 1155, 1157-1158 (La.App. 1st Cir.1992). Evidence supporting or controverting an objection of no right of action is admissible. Bank of New Roads v. Livonia South, Inc., 527 So.2d 1132, 1135 (La.App. 1st Cir.), writ denied, 532 So.2d 150 (La.1988). The party raising a peremptory exception bears the burden of proof. Falco Lime, 672 So.2d at 359. To prevail on a peremptory exception pleading the objection of no right of action, the defendant must show that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit. Jackson v. Slidell Nissan, 96-1017 (La.App. 1st Cir.5/9/97), 693 So.2d 1257, 1261. Accordingly, we find that the trial court erred in requiring that Falcon show that he was- in the class of persons who can bring the survival and wrongful death actions. Instead, the defendants, as the exceptors, had the burden of showing that Falcon did not have an interest in the subject matter of the suit. Thus, we must determine if the defendants satisfied their burden.

Generally, an action can only be brought by a person having a real and actual interest that he asserts. LSA-C.C.P. art. 681. Louisiana Civil Code articles 2315.1 and 2315.2 set forth respectively the survival action and the wrongful death action and list the classes of beneficiaries for those actions. The classes of beneficiaries are listed in both articles as follows: (1) the surviving spouse and child or children of the deceased, |4or either the spouse or the child or children; (2) the surviving father and mother of the deceased, or either of them if he left no spouse or child surviving; (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving; and (4) the surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

The primary category of beneficiaries under both articles includes “children” of the deceased tort victim. If a tort victim is survived by a spouse or a child, the parents of the tort victim have no right to recover for the damages sustained by the victim or for their own damages for the victim’s wrongful death. Jenkins v. Long Term Care Managers, Inc., 99-386 (La.App. 5th Cir.2/16/00), 758 So.2d 863, 864-865, affirmed, 00-0790 (La.11/28/00), 774 So.2d 101. Thus, the issue to be resolved in this case is whether the defendants proved that the deceased was survived by a child whose existence would preclude Falcon from making a claim.

In support of their exception, the defendants urged that Falcon did not have a right of action because the deceased left a child as evidenced by the certifícate of birth and a formal acknowledgement of paternity by the deceased. Falcon submits that the proof offered by the defendants was insufficient to defeat his claim in that there is no evidence in the record to prove that the deceased was survived by anyone other than himself. In light of the defendants’ failure to produce any evidence as to the child’s existence at the time of the deceased’s death, we conclude the trial court erred in sustaining the defendants’ exception raising the objection of no right of action. The fact of birth does not equate to proof of survival, nor can the presumption of life implicitly recognized in LSA-C.C. art. 54 be used to defeat Falcon’s right of action under the facts of this case. Having so found, we pretermit discussion of the issue of whether the defendants proved that Amber was a child of the deceased.

| sMotion for Summary Judgment

Falcon urges that the trial court erred in failing to grant his motion for summary judgment on the issue of liability. The judgment reflects that Falcon’s motion was found to be moot in light of the trial court’s ruling on the exception/motion filed by the defendants. In light of our reversal of the trial court’s ruling on the defendants’ exception/motion, Falcon’s motion for summary judgment is no longer moot. However, because the trial court failed to rule on this motion, we decline to exercise our power of review. Accordingly, we remand to the trial court for consideration of Falcon’s motion for summary judgment, as well as the defendants’ connected motion to strike that was also not considered by the trial court on the ground of mootness. See Southern Tool & Supply, Inc. v. Beerman Precision Inc., 01-1749 (La.App. 4th Cir.5/1/02), 818 So.2d 256, 263, writs denied, 02-1509, 02-1515, and 02-1531 (La.9/20/02), 825 So.2d 1177, 1178, and 1179.

Decree

For the foregoing reasons, the judgment of the trial court is reversed. This matter is remanded to the trial court for disposition of Falcon’s motion for summary judgment and the defendants’ motion to strike. Costs of this appeal are assessed to the defendants.

REVERSED AND REMANDED WITH INSTRUCTIONS.

GUIDRY, J., concurs in the result.

      . St. Paul Mercury Insurance Company was added as a defendant in Falcon’s first amending petition.

      . The defendants had filed a motion to strike an attachment to Falcon’s motion for sum-maty judgment.

      . The term "children" includes “those persons born of the marriage, those adopted, and those whose affiliation to the parent has been established in the manner provided by law.” LSA-C.C. art. 3506(8); Thomas v. Sister of Charity of the Incarnate Word Shreveport, 97-1443 (La.7/8/98), 713 So.2d 466, 468.

      . For this same reason, we conclude that the defendants failed to show the lack of a genuine issue of material fact such that they would be entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(B).


author: |-MCDONALD, J.

text:
    Ernestine SPURLOCK v. EAST FELICIANA PARISH SCHOOL BOARD.
    No. 2003 CA 1879.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Writ Denied Oct. 29, 2004.

      Floyd J. Falcon, Jr., Baton Rouge, Counsel for PlaintiffiAppellant Ernestine Spurlock.
    Robert L. Hammonds, Baton Rouge, Counsel for Defendant/Appellee East Feli-ciana Parish School Board.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   |-MCDONALD, J.

Ernestine Spurlock, the plaintiff, was a tenured teacher for the East Feliciana Parish School Board teaching second grade at Slaughter Elementary School for the 2001-2002 school year. After an incident that occurred on February 25, 2002, she was charged with willful neglect of duty and, after a tenure hearing before the School Board, her employment was terminated. Ms. Spurlock thereafter filed a petition for reinstatement with the Twentieth Judicial District Court asking that the decision be reversed and that she be reinstated to her tenured position with the School Board. The trial court denied the petition for reinstatement and affirmed the decision of the School Board. Ms. Spur-lock is appealing that judgment. We affirm.

THE INCIDENT

The specific reasons for the charge against Ms. Spurlock were detailed as follows:

On or about Monday, February 25, 2002, it was reported to Mrs. Ernestine Spur-lock, Second Grade Teacher at Slaughter Elementary School; that three (3) of her male students had been “humping the wall” in the boys’ restroom. In front of all of the students in her classroom, Mrs. Spurlock then ordered the student who reported the behavior of the other students to demonstrate the “humping” he had observed in the restroom. When the other three (3) students returned from the restroom, she also ordered them to “hump” the wall of the classroom in front of the other students. Mrs. Spurlock then asked the students in the presence of the other students in the classroom whether the wall had “done anything for them”. She then made each of them say the word “penis” out loud and asked them if they knew what came out of a penis. Mrs. Spurlock went on to tell the [misbehaving] male students that their penises were not as big “as a straw” and that she hoped that they would hurt them so that they would swell up and break. These actions by Mrs. Spurlock constituted willful neglect of duty on her part.

Doris Rieger, a classroom aide who witnessed this incident, testified that the students were embarrassed in front of their peers, and that when each of them tried to discontinue “humping the wall,” they were directed to 13continue. Ms. Rieger further testified that she felt humiliated and hurt by the incident, and was sick to her stomach when she left the classroom. One boy asked her why the students were “made to do that,” and she answered that she just couldn’t explain it at that time. Ms. Rieger went directly to the principal’s office to report the incident, but the principal was not in.

Slaughter Elementary School Principal Kimberly Glascock testified that she was at a school board meeting when the incident occurred, and when she got home that afternoon she received two phone calls from parents about the incident. She told the parents they could come to her office the next morning to discuss it. The next morning, three parents came to her office. Ms. Glascock investigated the incident, questioned each of the boys involved separately, and found their statements were consistent with those of Ms. Rieger. She then forwarded the information about the incident to the East Feliciana Parish School Board Superintendent.

THE STANDARD OF REVIEW

Judicial review of tenure proceedings must be limited to an inquiry of whether the School Board complied with the statutory formalities under Louisiana’s Teacher Tenure Law and whether the School Board’s findings were supported by substantial evidence. Substantial evidence has been defined as evidence of such quality and weight that reasonable and fair-minded men in exercise of impartial judgment might reach different conclusions. In conducting such an examination, the district court must give great deference to the school board’s findings of fact and credibility. Reasons for dismissal are largely in the sound discretion of the School Board. Wise v. Bossier Parish School Board, 2002-1525, pp. 5-6 (La.6/27/03), 851 So.2d 1090, 1094.

14THE assignments of error

Ms. Spurlock asserts that the trial court erred in affirming the decision of the School Board dismissing her; that the trial court erred in concluding that the School Board could dismiss a tenured teacher where she was not charged with violating any written policy or direct order where admittedly there was no written policy prohibiting the conduct and no refusal to obey a direct order; that the trial court erred in concluding that there was no necessity for the School Board to have a written policy prohibiting the conduct committed by her; that the trial court erred in concluding that sufficient evidence was presented to the School Board to sustain the dismissal of a tenured teacher; and that the trial court erred in concluding that the evidence demonstrated conduct below unspecified standards of general knowledge and common sense.

ANALYSIS

Although Ms. Spurlock makes six assignments of error, her essential argument is that the School Board failed to prove that she violated any direct order or identifiable school policy. She relies in large part upon Howard v. West Baton Rouge Parish School Board, 2000-3234 (La.6/29/01), 793 So.2d 153. In that case the plaintiff, a tenured vocational education instructor, parked his wife’s car, containing a .38 caliber revolver, outside the school shop. The gun was apparently stolen while the car was parked on campus, and Mr. Howard notified school authorities of the theft. He was thereafter charged with willful neglect of duty for bringing a gun onto the school grounds.

|fiAfter a tenure hearing, the School Board unanimously voted that Howard was guilty of willful neglect and terminated his employment. The District Court affirmed the School Board and the Court of Appeal affirmed the District Court’s decision. The Louisiana Supreme Court granted writs and reversed, finding that the School Board failed to prove that the plaintiff violated any direct order or identifiable school policy. Howard, 2000-3234 at p. 7, 793 So.2d at 157. Ms. Spurlock asserts that in her case, as in the Howard ease, there is no written policy or direct order that was violated.

However, in Howard the court also held that the proper dismissal of tenured teachers for willful neglect of duty lies only where the teacher had some knowledge that his actions were contrary to school policy gained either through warnings from the supervisors or from general knowledge concerning the responsibilities and conduct of teachers. Howard, 2000-3234 at p. 5, 793 So.2d at 156. The Howard court noted that the trend has been that the teacher must violate a policy or order where there is a dereliction of duty in order to be found guilty of willful neglect of duty, and went on to find that in that particular case, the analysis turned upon whether the teacher acted or failed to act in contravention of a direct supervisory order or against an identifiable school policy. Howard, 2000-3234 at pp. 6-7, 793 So.2d at 156-157.

Our careful reading of Howard, however, convinces us that, in its wisdom, left the door open for a case such as this, where the conduct of the teacher is so outrageous or egregious that willful neglect of duty can be found without a specific action or failure to act in contravention of a direct order or identifiable school policy.

The jurisprudence provides guidance as to the type of behavior that has led to the termination of tenured teachers. In Cunningham v. Franklin Parish School Board, 457 So.2d 184, 188 (La.App. 2 Cir.), writ denied, 461 So.2d 319 (La.1984), a tenured teacher with almost thirty years of service was terminated for willful neglect of duty after she was found guilty of leaving three pre-school handicapped students unattended in her locked classroom and missing her classes without permission. The teacher asserted that she could not be terminated for willful neglect of duty because she had not been warned that such conduct could be the basis for termination. The appellate court upheld the termination, finding that a warning is not required when the teacher should know her conduct is improper. Cunningham, 457 So.2d at 189.

In Summers v. Vermilion Parish School Board, 493 So.2d 1258 (La.App. 3 Cir.), writ denied, 497 So.2d 312 (La.1986), a tenured principal was charged with willful neglect of duty and dishonesty based on his arrest by law enforcement officials for possession of marijuana with intent to distribute. After a hearing, the School Board terminated the principal. The principal appealed, and the Third Circuit concluded that the conduct of the principal did fall within the category of willful neglect of duty, and was a matter of public policy and common sense. Summers, 493 So.2d at 1265.

In Celestine v. Lafayette Parish School Board, 284 So.2d 650, 651-652 (La.App. 3 Cir.1973), a tenured fifth grade teacher with eleven years experience was told by several students that two girls in his room had been using bad words. He confronted the girls in front of the class, and when they admitted they had used a vulgar word, he ordered each of them to write that word one thousand times and turn the work in to the principal. When the principal received the work, which consisted of the “f” word written one thousand times, he notified the superintendent of school who brought tenure hearing charges against the teacher. At the conclusion of the hearing, the |7School Board unanimously voted to dismiss the teacher. The teacher argued on appeal that he should not have been terminated because the School Board did not have a policy against requiring students to write words as a method of disciplining them. The appeals court affirmed the termination on the grounds that the teacher’s extremely poor judgment in requiring an eleven-year-old to write a very vulgar word many times, particularly in the presence of the other members of the class, supported his termination. Celestine, 284 So.2d at 655.

In Sylvester v. Cancienne, 95-0789 (La.App. 1 Cir. 11/9/95), 664 So.2d 1259, 1260, writ not considered, 95-3128 (La.1/26/96), 666 So.2d 663, a principal with fourteen years of experience used duct tape and rope to restrain a five-year-old behavior disordered kindergarten child in his desk. The school system terminated the principal on the grounds of incompetency and willful neglect of duty. The principal appealed, asserting that the school system did not have a specific policy regarding restraint techniques and prohibiting the use of duct tape and rope on students, thus her conduct could constitute neither incompetence nor willful neglect. This court affirmed the termination, stating the principal, by virtue of her education, experience, and certification, was required to conduct herself according to dictates of professionalism and common sense, even in the absence of a policy prohibiting certain conduct. Sylvester, 95-0789, 664 So.2d at 1264.

In the present case, Ms. Spurlock should have known that the general responsibility and conduct of teachers would include not humiliating children in front of the class. Admittedly, the School Board did not have a specific policy that prohibited a teacher from directing her students to simulate sex acts in the classroom, nor was Ms. Spur-lock given a direct order from her supervisor that she should not require second grade students | sto simulate sex acts in the classroom. Similarly, the School Board did not specifically prohibit second grade teachers from a discussion of boys’ penises in the classroom, nor did it specifically prohibit teachers from making statements to misbehaving male students that they hoped their penises would “swell up and break off.”

Daisy F. Sian, superintendent for the East Feliciana School System, acknowledged during her testimony that no policy prohibited teachers from disciplining elementary school students by requiring them to simulate sex acts in front of their peers in the classroom. She also testified, however, that the School Board did not have a policy which prohibits teachers from running over a student with their car, from standing in front of the class naked, or from gambling with students on campus.

Ms. Sian testified that it was impossible for a school system to have a policy that addressed every conceivable conduct by a teacher. Superintendent Sian testified that Ms. Spurlock’s actions were not authorized by School Board policy and demonstrated a lack of logic and common sense in the disciplining of young children. Further, she testified there was a policy that parental consent must be obtained before teaching anything of a sexual nature to the students, and further, that in disciplining students, the policy was that the children must always be treated with respect. These policies were obviously contravened by Ms. Spurlock.

We find that the conduct in this case is such that the School Board’s decision to terminate Ms. Spurlock’s employment was one in which this court should not substitute its judgment for the judgment of the School Board nor interfere with the School Board’s bona fide exercise of discretion. See Howard, 2000-3234 at p. 7, 793 So.2d at 157.

RDECREE

After a thorough review of the record and the jurisprudence, we find that there is substantial evidence to support the conclusions of the School Board. Therefore, the trial court decision affirming the School Board’s decision to terminate Ms. Spurlock is affirmed. Costs are assessed against Ms. Spurlock.

AFFIRMED.

      . Ms. Spurlock does not assert that the statutory formalities of the Teacher Tenure Law were not complied with.


author: 1 ¡.DOWNING, J. I,KUHN, J., | jPARRO, J.,

text:
    Charles N. BRANTON v. Bryan D. HAGGERTY, Vincent Lobello, and Malise Prieto, Clerk of Court, Parish of St. Tammany.
    No. 2004 CE 1844.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 2004.

      Charles N. Branton, Slidell, for Plaintiff/Appellant, In Proper Person.
    Raymond G. Hoffman, Jr., Metairie, Counsel for Defendant/Appellee, Bryan D. Haggerty.
    Patrick J. Berrigan, Slidell, Counsel for Defendant/Appellee, Vincent J. Lobello.
    Jeanne M. Roques, Covington, Counsel for Defendant/Appellee, Malise Prieto, Clerk of Court.
    Before: PARRO, KUHN, PETTIGREW, DOWNING, and GAIDRY, JJ.
   1 ¡.DOWNING, J.

Plaintiff, Charles N. Branton, filed suit challenging Bryan D. Haggerty’s and Vincent J. Lobello’s qualifications as candidates for the office of Judge of Slidell City Court. Plaintiff appeals the trial court’s dismissal of his petition. For the following reasons, we affirm.

DISCUSSION

Haggerty and Lobello sought to qualify in the special election called to fill the unexpired term of the Honorable Gary J. Dragon, Judge, Slidell City Court. Both men were admitted to the state bar on October 15, 1999. The primary election is scheduled for September 18, 2004, and the general election is set for November 2, 2004. Plaintiff filed suit challenging Hag-gerty’s and Lobello’s qualifications as candidates, as neither man had been admitted to the practice of law for a period of five years at the time he qualified. Plaintiff further alleged that should either candidate win the primary election of September 18, 2004, he would not be qualified to assume the office.

An action objecting to the candidacy of a person who qualified as a candidate in a primary election may be based on the ground that the candidate “does not meet the qualifications for the office he seeks in the primary election.” LSA-R.S. 18:492 A(3). Louisiana Revised Statute 18:451 states in pertinent part, “Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.” (emphasis supplied) With respect to the City Court of Slidell, LSA-R.S. 13:2487.2 specifies in pertinent part that the “city judge must be licensed to practice law in the State of Louisiana for at least five years previous to his election.”

The trial court concluded that the provisions of LSA-R.S. 13:2487.2 fall into the category of the “except as otherwise provided by law” language of LSA-R.S. 18:451 and held the determinative date of whether a candidate possesses the qualifications for the office he seeks is the date of the general election and 1 snot the date of qualification. We basically adopt the insightful written reasons of the trial judge.

Other circuits have held that the similar phrase “prior to his election” refers to the general election and not the primary election. Cook v. Campbell, 360 So.2d 1193, 1197 (La.App. 2 Cir.), writ denied, 362 So.2d 573 (La.1978); Aiple v. Naccari 454 So.2d 894, 894 (La.App. 5 Cir.), writ denied, 456 So.2d 151 (La.1984); see also Soileau v. Board of Sup’rs, St. Martin Parish, 361 So.2d 319, 323 (La.App. 3 Cir. 1978). Under the facts of this case, we find the phrase “previous to his election” also refers to the date of the general election and not the primary election. As observed by the second circuit:

The determinative date of a candidate’s qualifications should be fixed, certain and ascertainable at the time of qualification for candidacy. The date of the general election is certain and ascertainable in both regular and special elections. The interpretation of “election” urged by plaintiff would leave the determinative date uncertain and dependent on how many candidates qualify and, where there are more than two candidates, on whether one candidate receives a majority of the votes cast in the first primary, matters which cannot be determined until after expiration of the qualifying period or after the primary election.

Cook, 360 So.2d at 1197.

Moreover, in an election contest, the person objecting to the candidacy bears the burden of proving the candidate is not qualified. Russell v. Goldsby, 00-2595 (La.9/22/00), 780 So.2d 1048, 1051. The plaintiff has not carried his burden of establishing that the defendants will be elected prior to the fifth year of their admissions to the Louisiana State Bar Association. See Soileau, 361 So.2d at 323. The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Russell, 780 So.2d at 1051. Any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office. Russell, 780 So.2d at 1051.

1 Considering the foregoing, the judgment appealed from is affirmed. Costs of this appeal are assessed to the plaintiffiap-pellant, Charles N. Branton.

AFFIRMED.

GAIDRY, J., concurs.

KUHN, J., concurs and assigns reasons.

PARRO, J., dissents and assigns reasons.

PETTIGREW, J., dissents for the reasons assigned by Judge PARRO.

I,KUHN, J.,

concurring.

I concur to amplify a proposition established in the jurisprudence, i.e., the applicable legislation should be liberally interpreted to favor and promote candidacy.

The legal positions assumed by the parties in this appeal allow both sides to rely on statutes addressing the subject of qualifications for, or challenges to qualifications for, the office of Slidell City Court Judge. While the Election Code provides for challenging the qualifications of a candidate, it does not specifically address the qualifications of a judge of the Slidell City Court. Conversely, La. R.S. 13:2487.2, in establishing the office, states in pertinent part that “[t]he city judge must be licensed to practice law in [the state] for at least five years previous to his election .... ”

While one may argue, with some persuasion, that one statute or another should be used to determine the issue in this case, well-established jurisprudence resolves the ultimate issue of whether the candidate possesses the relevant qualification for office. In Pattan v. Fields, 95-2375 (La.9/28/95), 661 So.2d 1320, the Supreme Court reinstated the candidacy of a candidate for election to the state senate and set forth the following pertinent principles of law:

The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Any Indoubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office.

These legal principals are sufficient to decide this case. The candidacy of these two office seekers should be allowed.

| jPARRO, J.,

dissenting.

As the majority opinion correctly notes, LSA-R.S. 18:451 requires that a candidate possess the qualifications for the office he seeks at the time he qualifies for that office, “except as otherwise provided by law.” Such an exception is provided by LSA-R.S. 13:2487.2, which states that a judge for the City Court of Slidell must be licensed to practice law in the State of Louisiana for at least five years “previous to his election.” Thus, the precise question before the court is whether the “election” date as of which the candidates in this case must possess the qualifications for the office is the date of the primary election on September 18, 2004, or the general election on November 2, 2004. Louisiana Revised Statute 18:451 does not answer this question, as it refers to both elections when it states that a person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in “the election.”

However, I believe the answer to this question can be found in another provision of the election code. According to LSA-R.S. 18:492(A), an action objecting to the candidacy of a person must be based on certain stated grounds, one of which is set out in subparagraph (3) and states that the defendant “does not meet the qualifications for Lthe office he seeks in the primary election.” (Emphasis added.) In fact, subparagraphs (1) and (2) of that statute also indicate that the election upon which a challenge to candidacy must be based is the primary election, either because the candidate did not qualify “for the primary election” in the manner prescribed by law or within the time prescribed by law. Given this clear and unambiguous statement, which has not been interpreted in any jurisprudence, I would find the plaintiff carried his burden of proof that neither of the challenged candidates meets the qualifications for the office he seeks “in the primary election,” as neither will have been licensed to practice law in the State of Louisiana for at least five years “previous to his election,” as that term is defined in the statute governing objections to candidacy.

For that reason, I respectfully dissent.

      . "A judge of the supreme court, a court of appeal, district court, family court, parish court, or court having solely juvenile jurisdiction shall have been admitted to the practice of law in this state for at least five years prior to his election, and shall have been domiciled in the respective district, circuit, or parish for the two years preceding election. He shall not practice law.” La. Const. art. V, § 24. (emphasis supplied)

      . The Louisiana Supreme Court stated: "Writ denied. We find no error of law in the reasons stated by the Court of Appeal.”

      . The majority opinion relies primarily on the Cook case for the conclusion that the “election” means the general election. However, the Cook case involved a candidate for district court judge, which is a court established by the Louisiana Constitution, and the case therefore interpreted constitutional provisions, some of which were applicable only to district court judges. In contrast, our case involves the City Court of Slidell, which was established by statute. Therefore, the principles of law applied by the court in Cook differ from those in this case.


author: 1 .PETTIGREW, J.

text:
    Roger D. CRAIG v. BANTEK WEST, INC.
    No. 2003 CA 2757.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Rehearing Denied Nov. 9, 2004.
    William R. Mustian, III, Metairie, for Plaintiff-Appellant Roger D. Craig.
    John J. Rabalais, Robert T. Lorio, Cov-ington, for Defendanh-Appellee Bantek West, Inc.

      Before: CARTER, C.J., PETTIGREW, and McDONALD, jj.
   1 .PETTIGREW, J.

In this workers’ compensation case, the claimant appeals from a judgment granting his employer’s exception raising the objection of prescription as to certain claims for penalties and attorney fees filed by the claimant. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The claimant, Roger D. Craig, injured his left shoulder on December 14, 1999, while working for Bantek West, Inc. (“Bantek”) as an armored car guard and ATM technician. According to the record, Mr. Craig’s injury occurred while he was “lifting a tote bag of money/coins when [the] handle (plastic) broke [and he] jerked [his] arm trying to catch [the] tote.” Mr. Craig subsequently underwent shoulder surgery, followed by physical therapy and orthopedic treatment. Mr. Craig was unable to return to work until September 24, 2000, at which time he began working as a surveillance investigator with a different employer.

On April 17, 2003, Mr. Craig filed a disputed claim for compensation against Bantek, alleging that he was entitled to multiple penalties for Bantek’s violations of workers’ compensation laws. Mr. Craig asserted that although he had received workers’ compensation benefits from Ban-tek, the “benefits were paid late and/or stopped at various times.” In response to Mr. Craig’s claim, Bantek filed an exception raising the objection of prescription. Therein, Bantek argued that Mr. Craig’s demands for penalties and attorney fees for alleged conduct that occurred more than one year prior to the filing of his action would be prescribed as a matter of law. Bantek maintained that Mr. Craig’s “fault-based claims would be subject to the suppletive prescriptive period of Article 3492 of the Louisiana Civil Code, providing that delictual actions are subject to a liber-ative prescription of one year.”

The matter proceeded to hearing on July 18, 2003, at which time the workers’ compensation judge heard argument from counsel for both sides. At the conclusion of the hearing, the judge instructed counsel for both sides that a timeline of events was necessary in order to reach a decision on the exception. Thereafter, the parties | .submitted supplemental memoranda outlining their respective arguments. Mr. Craig provided the following details of his various claims for penalties and attorney fees:

December 14,1999 Date of Injury
On December 14, 1999 Roger Craig was involved in accident arising out of and in the course and scope of his employment. Despite the clear and substantial evidence regarding a work related injury, his claim for compensation was originally denied. This error was later recognized and Mr. Craig’s benefits were instated, albeit untimely.
September 24, 2000 Return to Work
As a result of his injury, Mr. Craig came under the medical care of Dr. Ralph Katz and Dr. Chris J. Digrado. As a result of Mr. Craig’s injuries to his shoulder he was unable to return to work until September 24, 2000. Although Mr. Craig did return to work on September 24, 2000 he was unable to return to his previous occupation due [to] medically imposed work restrictions.
April 6, 2001 Acknowledgement of Mr. Craig’s Entitlement to SEB Benefits
Despite the clear evidence establishing Mr. Craig’s inability to earn 90% of his pre-accident average weekly wage, his employer did not properly investigate the issue of [Supplemental] Earning Benefits until April 6, 2001, seven (7) months after [he] returned to work. ... On April 6, 2001 it was finally acknowledged that Mr. Craig was entitled to SEB benefits. However, all past due compensation was not paid, instead Mr. Craig received payments in installments, in violation of the Act.
February 6, 2003, termination of Mr. Craig’s SEB Benefits
On February 6, 2003, and without any reasonable justification, Employer terminated Mr. Craig’s SEB benefits. ... Employer alleges that they were justified based on a medical report from Dr. Katz dated 12/1/00 but clearly this is not a valid justification as Employer waited 35 months after the issuing of this report to terminate his benefits. Once again and realizing their mistake Mr. Craig’s SEB benefits were reinstated. As a result of Employer’s numerous violations of Louisiana’s Workers’ Compensation Act, Mr. Craig filed a disputed claim for compensation based on his Employer’s arbitrary and capricious actions in this matter.

In a judgment rendered on July 24, 2003, the workers’ compensation judge granted Bantek’s exception raising the objection of prescription as to the claims for penalties and attorney fees due to alleged misconduct on December 14, 1999; September 24, 2000; and April 6, 2001. With regard to the claim for penalties and attorney fees due to alleged misconduct on February 6, 2003, Bantek’s exception was denied. The judge rendered written reasons for judgment on August 19, 2003.

pit is from this judgment that Mr. Craig has appealed, assigning the following specifications of error:

1. The trial court erred in holding that claims for penalties and [attorney] fees are delictual actions and in applying the one-year prescription found in Civil Code article 3492. If they are “torts” then the Office of [Workers’] Compensation has no jurisdiction over such claims. Sampson v. Wendy’s Management, Inc., 593 So.2d 336 (La.1992). Thus, holding that such claims are “torts” leads to an absurd result of taking such claims out of the [workers’] compensation system and placing them in district court.
2. The trial court erred in failing to follow the precedent established by the Louisiana Supreme Court in Lester v. Southern Casualty Ins. Co., 466 So.2d 25 (La.1985), which held that the ten-year prescription of Civil Code article 3499 applies to actions under the Louisiana workers’ compensation law for which R.S. 23:1209 provides no specific prescriptive period.

DISCUSSION

Generally, the party pleading prescription has the burden of proving the facts supporting the exception. However, where a plaintiffs claims are prescribed on the face of the petition, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Iverstine v. Albemarle Corp., 2002-2555, p. 7 (La.App. 1 Cir. 7/2/03), 852 So.2d 492, 497, writ denied, 2003-2583 (La.12/12/03), 860 So.2d 1154. Moreover, it is well settled under Louisiana law that the allegations and prayer of the petition determine the true nature of the action and the applicable prescriptive period. Griffin v. BSFI Western E & P, Inc., 2000-2122, p. 8 (La.App. 1 Cir. 2/15/02), 812 So.2d 726, 733.

In the instant case, Mr. Craig filed a disputed claim for compensation against Bantek alleging entitlement to “multiple penalties.” Mr. Craig asserted “benefits were paid late and/or stopped at various times” by Bantek. The prescriptive period applicable to claims for workers’ compensation benefits is set forth in La. R.S. 23:1209. Pursuant to section A of this statute, claims for workers’ compensation benefits are barred unless filed within: (1) one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment for partial disability; or (3) one year from the time the injury develops if not immediately manifested, but, in any event, no more than two years after the accident. However, there |fiis no reference in this statute to the prescriptive period applicable to claims for penalties and attorney fees.

Pursuant to La. R.S. 23:1201(F), penalties and attorney fees may be awarded as follows:

Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim ....

As set forth in La. R.S. 23:1201(F)(1), “[s]uch penalty and attorney fees shall be assessed against either the employer or insurer, depending upon fault.” Moreover, no such penalties and attorney fees can be awarded “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201(F)(2).

The statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Barber Bros. Contracting v. Young, 2003-0747, p. 7 (La.App. 1 Cir. 2/23/04), 873 So.2d 677, 681, writ denied, 2004-0704 (La.5/7/04), 872 So.2d 1084. Penalties should be enforced only in those instances in which facts clearly negate good faith and just cause in connection with refusal of allowance of compensation. Hebert v. South Louisiana Contractors, Inc., 238 So.2d 756, 761 (La.App. 1 Cir.1970).

After considering the evidence and the applicable law in the instant case, the workers’ compensation judge concluded that a claim for penalties and attorney fees “necessarily implies wrongful conduct for inaction” and “involves an inquiry into fault as provided in La. R.S. 23:1201(F)(1).” Accordingly, the judge held that the one-year prescriptive period for delictual actions as set forth in La. Civ.Code art. 3492 “more appropriately applies to a claim for penalties and attorney fees.”

We agree. Any adjudication of Mr. Craig’s claims herein requires an inquiry into the fault of Bantek and/or its insurer and a determination of whether the parties’ actions clearly negate good faith and just cause with respect to the handling of Mr. Craig’s workers’ compensation claim. Pursuant to La. Civ.Code art. 3492, “[d]el-ictual actions are |fisubject to a liberative prescription of one year” that “commences to run from the day injury or damage is sustained.” Mr. Craig’s fault-based claims are clearly delictual in nature. Thus, we find no error in the finding by the workers’ compensation judge that the prescriptive period provided for in Article 3492 applies herein.

On appeal, Mr. Craig argues that the Louisiana Supreme Court’s decision in Sampson v. Wendy’s Management, Inc., 593 So.2d 336 (La.1992) supports his position that all delictual actions are outside the jurisdiction of the Office of Workers’ Compensation. Mr. Craig further asserts that this court’s decision in Clarendon Nat. Ins. Co. v. Weston, 97-1089 (La.App. 1 Cir. 5/15/98), 712 So.2d 628, stands for the proposition that claims for penalties and attorney fees under La. R.S. 23:1208 are within the jurisdiction of the Office of Workers’ Compensation because such claims are not delictual actions. We find no merit to these arguments and disagree with Mr. Craig’s interpretation of the holdings in Sampson and Clarendon as they relate to the case before us now.

The Sampson case involved an employee’s suit in district court against her employer under La. R.S. 23:1361 for penalties resulting from her alleged retaliatory discharge. Arguing that the Office of Workers’ Compensation had original, exclusive jurisdiction over workers’ compensation matters pursuant to La. R.S. 23:1310.3, the employer filed exceptions raising the objections of prematurity and lack of subject matter jurisdiction. The district court overruled the exceptions, finding it had not been divested of jurisdiction over this claim because the cause of action for retaliatory discharge under La. R.S. 23:1361 constituted a claim for “civil penalties” rather than a suit for workers’ compensation benefits. On appeal, the district court judgment was reversed based on a finding by the court that a claim for a retaliatory discharge constitutes a workers’ compensation matter. The employee’s suit was dismissed without prejudice, and a writ application to the Louisiana Supreme Court followed.

The Louisiana Supreme Court concluded that the retaliatory discharge claim at issue was an employment law matter rather than a claim for workers’ compensation benefits or penalties for adjudication by the Office of Workers’ Compensation. Sampson, 593 So.2d at 339. The court noted that although the retaliatory discharge provision was located in the Louisiana Workers’ Compensation Act, “[t]he fact that the statute recognizing the cause of action for retaliatory discharge appears in the Chapter on Worker’s Compensation does not alone make the action a worker’s compensation matter.” Id. at 338. The court continued, noting as follows:

Even if we were to find that the action for retaliatory discharge constituted a worker’s compensation matter, district courts would still not be divested of jurisdiction as an administrative agency determination of this action has not been provided for by law. The claims for which hearing officers are given original, exclusive jurisdiction under LSA-R.S. 23:1310.3 are claims for any compensation or benefits. The Worker’s Compensation Act only provides for the administrative agency determination of benefits and penalties directly associated with the employee’s work-related injury and his receipt of worker’s compensation benefits. See LSA-R.S. 23:1291 et seq.

Id. at 339. Thus, the Sampson court concluded that the district court was the proper forum in which to bring a claim for retaliatory discharge under La. R.S. 23:1361.

Contrary to Mr. Craig’s argument on appeal, the Sampson case does not stand for the proposition that all delictual actions are outside the jurisdiction of the Office of Workers’ Compensation. Rather, the court concluded that a claim for retaliatory discharge does not involve a “determination of benefits and penalties directly associated with the employee’s work-related injury and his receipt of worker’s compensation benefits” and, therefore, does not constitute a workers’ compensation matter. Id.

In Clarendon, a workers’ compensation insurer sought to discontinue paying benefits on the ground that the claimant made willful misrepresentations in violation of La. R.S. 23:1208. The workers’ compensation judge ruled that the claimant had willfully made false statements and representations for the purpose of obtaining benefits and was, thus, in violation of La. R.S. 23:1208. The claimant appealed the judgment of the workers’ compensation judge and, relying on the case of Grant v. Natchitoches Manor Nursing Home, 96-1546 (La.App. 3 Cir. 5/14/97), 696 So.2d 73, unit denied, 97-1582 (La.10/17/97), 701 So.2d 1330, filed a declinatory exception in this court raising the objection of lack of subject matter jurisdiction.

lRIn Grant, the third circuit concluded that when an employee violates La. R.S. 23:1208, his actions are tortious in nature rather than a workers’ compensation matter. The court noted as follows:

Following the reasoning in Sampson, we find that the penalties meted out by the hearing officer in accordance with La. R.S. 23:1208 against claimant clearly were not “directly associated with the employee’s work-related injury,” Sampson, 593 So.2d at 339. Instead, the nature of the cause of action embodied in La.R.S. 23:1208 is tortious/delictual in nature, falling beyond the jurisdictional authority of the hearing officer as authorized by La. Const. Art V, § 10(A)(5), § 16(A), La.R.S. 23:1310.3. Clearly, the misconduct characterized by La.R.S. 23:1208 falls within a well recognized area of tort law (the tort of fraud/deceit), and thus we conclude that the hearing officer and the Office of Workers’ Compensation lacked jurisdiction to impose sanctions under La.R.S. 23:1208.

Grant, 96-1546 at 8, 696 So.2d at 77-78. Disagreeing with the third circuit’s decision in Grant, the Clarendon court concluded as follows:

It is the opinion of this court that, unlike the retaliatory discharge addressed by the supreme court in Sampson, the controversion of a claimant’s entitlement to workers’ compensation benefits based upon willful false statements or representations is integrally related to the judicious administration of workers’ compensation claims. La. R.S. 23:1310.3.

Clarendon, 97-1089 at 5, 712 So.2d at 630. Thus, the claimant’s exception was found to be without merit.

On appeal, Mr. Craig contends that our decision in Clarendon stands for the proposition that claims for penalties under La. R.S. 23:1208 are within the jurisdiction of the workers’ compensation court because such claims are not delictual in nature. Mr. Craig argues that Section 1208 misrepresentations are analogous to the improper behavior that prompts claims for penalties and attorney fees. Thus, Mr. Craig maintains, his claims in the instant case are similarly not delictual in nature. We find no merit to this argument. The decision in Clarendon rests solely on this court’s determination that regardless of whether Section 1208 claims are delictual or not, such claims are “integrally related to the judicious administration of workers’ compensation claims” and thus properly arise under the jurisdiction of the workers’ compensation courts.

In his second assignment of error, Mr. Craig contends the precedent established by the Louisiana Supreme Court in Lester v. Southern Cas. Ins. Co., 466 So.2d 25 (La.1985) mandates that the ten-year prescriptive period found in La. Civ.Code art. 3499 |napplies to his claims for penalties and attorney fees. Mr. Craig argues that because La. R.S. 23:1209 is silent as to a prescriptive period for claims for penalties and attorney fees, the logic of Lester is controlling in this case and the ten-year prescriptive period for a personal action should apply herein. We find no merit to Mr. Craig’s argument that his claims for penalties and attorney fees against Bantek are subject to a ten-year prescriptive period.

The claim at issue in Lester involved an ongoing nonpayment of medical benefits pursuant to the Louisiana Workers’ Compensation Act. Noting that La. R.S. 23:1209 did not specifically provide a prescriptive period for medical expenses, the Louisiana Supreme Court held that the ten-year prescriptive period for personal actions pursuant to La. Civ.Code art. 3499 was applicable. Lester, 466 So.2d at 28.

Subsequent to the decision in Lester, by Acts 1985, No. 926, § 1, effective January 1, 1986, the legislature added a prescriptive period to La. R.S. 23:1209 for medical benefits, which is now designated as Subsection C and provides as follows:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

Nonetheless, we note that the Lester decision was limited to a claim for medical benefits. An employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. La. R.S. 23:1203; Walker v. High Tech Refractory Services, Inc., 2003-1621, p. 4 (La.App. 1 Cir. 6/25/04), 2004 WL 1418066, 885 So.2d 1185, 1188. Such is not the case with a fault-based claim for penalties and attorney fees pursuant to La. R.S. 23:1201(F), where the facts must clearly negate good faith and just cause in connection with an employer’s refusal to pay workers’ compensation benefits. Hebert, 238 So.2d at 761.

|10In the instant case, the workers’ compensation judge opined that allowing a ten-year prescriptive period on a claim for penalties and attorney fees “would work absurd results and needlessly overburden the workers’ compensation court system with stale claims.” In written reasons for judgment, the judge further noted:

Claims for penalties and attorney fees arise at a specific point in time, namely the point in time at which a party allegedly fails to reasonably controvert a claim or arbitrarily and capriciously discontinues benefits. In situations such as the instant case where benefits are ultimately paid, albeit allegedly late, the “offending” party is entitled to notification within a reasonable period of time whether their alleged misconduct will be the subject of a claim for penalties and fees. Additionally, since the claim for penalties and attorney fees arises at the time of the alleged misconduct, this court can think of no good reason to allow a longer period of time for the penalty and attorney fee claim than is allowed for the actual claim for benefits.

We agree with this logical reasoning by the workers’ compensation judge. It is well settled in Louisiana jurisprudence that the purpose of a prescription statute is to afford a defendant economic and psychological security if a cause of action is not pleaded timely and to protect the defendant from stale claims and the loss of relevant proof. Terrel v. Perkins, 96-2629, p. 4 (La.App. 1 Cir. 11/7/97), 704 So.2d 35, 38. As previously noted, a claim for penalties and attorney fees necessitates an inquiry into the fault of Bantek and/or its insurer and a determination of whether the parties’ actions clearly negate good faith and just cause with respect to the handling of Mr. Craig’s workers’ compensation claim. Although such a claim is delictual in nature, it is “integrally related to the judicious administration of workers’ compensation claims” and properly arises under the jurisdiction of the workers’ compensation courts. See Clarendon, supra. Thus, we find no error in the application of the one-year prescriptive period set forth in Article 3492 to Mr. Craig’s claims herein for penalties and attorney fees. Accordingly, the judgment sustaining Bantek’s exception raising the objection of prescription as to claims for penalties and attorney fees due to alleged misconduct on December 14, 1999, September 24, 2000, and April 6, 2001, is affirmed.

| „ CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the workers’ compensation judge. All costs associated with this appeal are assessed against Roger D. Craig.

AFFIRMED.

      . This claim was ultimately dismissed on a motion for summary judgment, which judgment is the subject of a separate appeal to this court, Docket No. 2004 CA 0229, also decided this date.

      . Thus, the ten-year prescriptive period provided for in Lester was only applicable from April 1, 1985, the date of the Lester decision, through January 1, 1986, the effective date of the Act.