author: 1MAX N. TOBIAS, JR, Judge. 1CANNIZZARO, J.,

text:
    FIRST NATIONAL BANK OF COMMERCE v. Earl J. BOYDELL, Jr.
    No. 2003-CA-0613.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.
    Wayne Anthony Maiorana, Jr., Newman, Mathis, Brady, Wakefield & Spedale, Me-tairie, LA, for First National Bank of Commerce, Plaintiff/Appellee.
    Earl M.J. Boydell, Jr., Harahan, LA, in Proper Person, Defendant/Appellant.
    (COURT COMPOSED OF Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   1MAX N. TOBIAS, JR, Judge.

On 25 November 1997, plaintiff/appellee, First National Bank of Commerce (“FNBC”), filed suit against defendant/appellant, Earl M.J. Boydell, Jr. (“Boydell”), for sums allegedly owed on a MasterCard account. The petition was amended in response to the trial court’s granting of an exception of vagueness. Service of process had been erroneously made on Earl Boydell, Sr., father of Boydell, and the trial court granted Boydell’s exception of insufficiency of process. Thereafter, a special deputy was appointed and the record reflects that Boydell was personally served by the special deputy on 28 August 2001. Boydell did not file an answer, but filed a motion to dismiss because of abandonment. There is no evidence in the record on appeal that the motion to dismiss was ever ruled upon of by the court.

On 9 January 2003, a default judgment was rendered in favor of FNBC for the full amount due on the MasterCard account, plus interest, costs, and attorneys’ fees. A notice of signing of judgment appears of record and indicates that a copy of the judgment was mailed to Boydell on 9 January 2003.

| ¡.Boydell mailed to the clerk of court a motion to vacate and/or motion for new trial on 10 January 2003 as documented by his cover letter of that date, a copy of which is attached as “Appendix A.” The clerk filed the motion on 15 January 2003. The court did not, however, render a judgment on Boydell’s motion to vacate and/or for new trial.

This court issued a show cause order to the parties on 3 September 2003 requesting an explanation as to whether or not the appeal should be dismissed as untimely pursuant to La. C.C.P. art. 5002. Boydell responded asserting that he did not receive a copy of the 9 January 2003 judgment until 17 January 2003. He further claims that he contacted the clerk of court on that day about the delay. He states that the clerk advised him that his motion for new trial was untimely under La. C.C.P. art. 4907. He further asserts that he mailed his motion for appeal to the clerk on 24 January 2003.

Boydell’s motion for appeal of the 9 January 2003 judgment was filed on 27 January 2003.

On the merits, Boydell’s assignments of error assert that the judgment was rendered without proper service of process, and that the judgment was rendered in spite of the fact that the case had been abandoned. Boydell’s original brief does not address the issue of the untimely motions for new trial and appeal. FNBC’s brief does, however, assert this court’s lack of jurisdiction to hear the matter due to the untimely filing of the appeal.

|3A review of the record reveals that both the motion to vacate and/or for new trial and the motion for appeal were untimely. La. C.C.P. articles 4907 and 5002 govern new trial delays and appeal delays from city courts and parish courts.

La. C.C.P. art. 4907 provides:

A. After judgment is signed in the parish or city court, a party may make a written request or a motion for new trial for any of the grounds provided by Articles 1972 and 1973.
B. The delay for applying for a new trial shall be three days exclusive of holidays. Where notice of judgment is required, this delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment.

A notice of signing of a final judgment is required pursuant to La. C.C.P. arts. 4905 and 1913. In the present case, the notice of signing of judgment is dated 9 January 2003. Under the provisions of article 4907, the three-day delay period for requesting a new trial commenced on Friday, 10 January 2003. Boydell’s motion to vacate and/or for new trial was mailed by him to the clerk on 10 January 2003, as documented by his cover letter (Appendix A), and was not filed by the clerk until 15 January 2003. It is clearly untimely. Cf., Jackson v. Julien, 2001-1024 (La.App. 4 Cir. 9/25/02), 828 So.2d 1147.

An untimely motion for a new trial does not stop the appellate delays from running. Jones v. Dillard Department Stores, Inc., 93-205 (La.App. 5 Cir. 8/26/03), 624 So.2d 4. The appeal delays are set forth in La. C.C.P. art. 5002, as follows:

A. An appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary.
B. When an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of [4the order denying a new trial, when such notice is necessary.

Our courts have noted that the wording of article 5002 differs from article 4907 regarding the commencement of the delay period. Myles v. Turner, 612 So.2d 32 (La.1993). The delay for an appeal pursuant to article 5002 commences from the day the notice is received, whereas the delay for a new trial pursuant to article 4907 commences from the day the notice is mailed. Id.

Given the fact that Boydell’s motion for new trial was untimely, the 10-day delay for the appeal commenced on the date of receipt of the notice of signing of the original judgment. The notice of signing of judgment was issued on 9 January 2003. The date that Boydell received the notice does not appear in the record. However, Boydell’s 10 January 2003 cover letter (Appendix A), that accompanied the filing of the motion for new trial, clearly and affirmatively indicates that he would have received notice by that date. The motion for appeal was filed on 27 January 2003; it is untimely because Boydell’s 10 January 2003 cover letter clearly preponderates to establish that he received and had actual knowledge of the 9 January 2003 judgment on 10 January 2003, otherwise why would he have sought a new trial.

For the foregoing reasons, this appeal is dismissed.

APPEAL DISMISSED.

CANNIZZARO, J., dissents with reasons.

1CANNIZZARO, J.,

dissents with reasons.

I respectfully dissent.

The delay for an appeal pursuant to La.C.C.P. art. 5002 commences from the day the notice of judgment is received. In this case, Boydell’s motion for new trial was untimely, thus, the 10-day delay for the appeal commenced on the date of receipt of the notice of signing of the original judgment. The notice of signing of judgment was issued on January 9, 2003. The date that Boydell received the notice of judgment does not appear in the record. The majority, however, concludes that Boydell’s motion for appeal is untimely, finding that his January 10, 2003 cover letter “preponderates to establish that he received and had actual knowledge of the 9 January 2003 judgment on 10 January 2003, otherwise why would he have sought a new trial.” Absent proof in the record to verify the date Boydell actually received notice of the signing of the judgment, I cannot say that Boydell’s appeal is untimely and should be dismissed.

      . Boydell could have filed his motions by facsimile transmittal and within five days thereafter filed the original with the clerk. La. R.S. 13:850. However, the record does not reflect and he does not assert that he did so.

      . Pursuant to La. C.E. art. 201, we take judicial notice that Boydell is a lawyer.

      . Although we dismiss Boydell’s appeal, we note that Boydell might have a remedy. See La. C.C.P. art.2001 etseq.


source: Caselaw Access Project

author: |, JOAN BERNARD ARMSTRONG, Judge. 1TOBIAS, J.,

license: Public Domain

text:
    Patricia M. WILLIAMS v. Stanley H. ABADIE, Nancy K. Harkess, Jane Willis, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, John Doe, Richard Roe, Mary Moe, Peggy Poe, Susan Sew, Henrietta Hoe and Jenny Joe.
    No. 2003-CA-0605.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.

      Lynn E. Williams, Jeffrey G. Rice, Williams Law Firm, Baton Rouge, LA, for Plaintiff/Appellant.
    Phyllis Guin Cancienne, Steven F. Griffith, Jr., Locke, Liddell & Sapp, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge MAX N. TOBIAS Jr.).
   |, JOAN BERNARD ARMSTRONG, Judge.

This is an appeal from the dismissal of plaintiffs lawsuit as abandoned pursuant to La. C.C.P. art. 561. The trial court ruled that the dating and signing of a deposition was not a formal step in the prosecution or defense of the proceeding sufficient to interrupt the period of abandonment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

Plaintiff/appellant, Patricia Williams, Ph. D., filed an employment discrimination action against defendants/appellees, her former employers, namely, Stanley H. Aba-die, Ph.D., Louisiana State University, and others. Suit was filed on October 22, 1992 in the Civil District Court for the Parish of Orleans. On May 21, 1999, the deposition of Dr. Abadie was taken; but Dr. Abadie did not sign the deposition until August 10, 1999. On May 29, 2002, appellees filed a motion to dismiss the suit for abandonment pursuant to La. C.C.P. art. 561. May 29, 2002 was three years after the taking of the deposition, but not three years after the signing of the deposition. After a hearing on the matter, the trial court rendered judgment on October 24, 2002, granting appellees’ motion and dismissing appellant’s lawsuit with prejudice.

I ¡ASSIGNMENT OF ERROR:

In her sole assignment of error, the plaintiff-appellant argues that the trial court erred in not finding that Dr. Aba-die’s signing of his deposition was a positive act by a party and was therefore a formal step that interrupted the period of abandonment. More particularly, appellant submits that the deposition was not complete until the deponent signed the deposition. In support of that argument, appellant relies on La. C.C.P. art. 1445, which requires a deposition to be read and signed unless waived.

At issue here is La. C.C.P. art. 561, which provides, in pertinent part, that an action is deemed abandoned when the parties fail to take any step in the prosecution or defense in the trial court for a period of three years. Appellant contends that the jurisprudence has uniformly held that article 561 is to be liberally construed in favor of maintaining plaintiff’s suit. Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La.5/15/01), 785 So.2d 779. More particularly, appellant asserts that the courts have held that the dismissal of a lawsuit is a harsh remedy; and as such, any step taken must be considered as positive and against abandonment. Manale v. Executive Healthcare Recruiters, Inc., 98-2652 (La.App. 4 Cir. 11/18/99), 747 So.2d 1200.

In opposition, appellees submit that the deposition of Dr. Abadie, taken on May 21, 1999, was the last formal step in the action prior to abandonment. Moreover, appel-lees argue that Dr. Abadie’s signing of the deposition, some three months later, did not constitute a step in the prosecution of this matter as contemplated by law.

Appellees argue that in reference to abandonment, the language of article 561(B) is quite clear:

Is Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

As further support for the position that it is the taking of the deposition that constitutes a step in the proceedings, and not the signing, appellees cite La. C.C.P. art. 1446(D), which states:

The taking of a deposition shall be considered a step in the prosecution or defense of an action for the purposes of article 561, notwithstanding that the deposition is not filed in the record of the proceedings.

Appellees point out that both codal articles specifically state that it is the taking of a deposition, and not the signing of a deposition, that is the formal step in the prosecution or defense of an action. It is argued by appellees that the courts should assume that the legislature intended every word, phrase, and clause of a statute to have some meaning and effect. Elevating Boats, Inc. v. St. Bernard Parish, 2000-3518 (La.9/5/01), 795 So.2d 1153, 1166.

Appellees further contend that the purpose of article 561 is the prevention of protracted litigation filed for the purpose of harassment or without serious intent to hasten the claim to judgment. Bridges v. Wilcoxon, 34,660 (La.App. 2 Cir. 5/9/01), 786 So.2d 264, 267. With this purpose in mind, appellees point out that in the eleven years that this case has been pending, appellant noticed only one deposition, served very little written discovery, and filed no substantive motions. Appellees therefore submit that appellant has displayed no desire to hasten this matter to judgment.

DISCUSSION:

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. La. C.C.P. art. 561. The policy underlying this requirement is to prevent protracted litigation which is filed for purposes of harassment or without serious intent to hasten the claim to judgment. Viesel v. Republic Ins. Co., 95-0244 (La.App. 4 Cir. 11/30/95), 665 So.2d 1221; Brister v. Manville Forest Products, 32,386, 32-387 (La.App. 2 Cir. 12/15/99), 749 So.2d 881. However, the law favors, and justice requires, that an action be maintained whenever possible so that the aggrieved party has his day in court. Jones v. Phelps, 95-0607 (La.App. 1 Cir. 11/9/95), 665 So.2d 30. Article 561 is to be liberally interpreted, and any action or step taken to move the case toward judgment should be considered. The article was not intended to dismiss those cases in which the plaintiff has clearly demonstrated that he does not intend to abandon the action. Id.

This court is mindful of the liberal interpretation to be afforded article 561. However, given the delays and inaction apparent from the record, we do not find that appellant displayed a real intent to hasten this matter to conclusion. More importantly, article 561(B) clearly dictates the abandonment period that this court must apply. The legislature amended article 561 specifically allowing the taking of a deposition to be considered a step in the prosecution or defense of an action. In reviewing the amendment to article 561, we must note that the legislature did not elect to make the dating and signing of a deposition a step in the action.

We agree with appellees argument as to the correct interpretation of article 561(B). When the words of a statute are clear and unambiguous, they must be applied as written. Elevating Boats; see also, La. R.S. 1:4. In construing legislative enactments, we must assume that the legislature intended every word, | sphrase, and clause to have some meaning and that none was inserted by accident. Id.; State v. Texas Co., 205 La. 417, 431, 17 So.2d 569, 573 (La.1944). Consequently, we will construe every provision of a statute in such a manner so as to give it some effect. City of Gretna v. Aetna Life Ins. Co., 206 La. 715, 727-28, 20 So.2d 1, 5 (La.1944). Above all else, interpretation must give a fair and reasonable meaning to the legislation so that the intent of the legislature is honored. J.M. Brown Const. Co., Inc. v. D M Mechanical Contractors, Inc., 275 So.2d 401, 404 (La.1973). Applying these principles to article 561(B), we find that the legislature intended that the taking of a deposition, not the signing, constitutes the formal step in the action for purposes of assessing the abandonment period.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., concurs.

1TOBIAS, J.,

concurs.

I respectfully concur in the majority’s reasons and conclusion that the plaintiffs case must be dismissed for abandonment pursuant to La. C.C.P. art. 561.

The trial court in the case at bar dismissed the plaintiffs case with prejudice. The plaintiff does not assign such as error. If a court fails to state whether a dismissal on the grounds of abandonment is with or without prejudice, it is presumed to be without prejudice. A dismissal on the grounds of abandonment pursuant to La. C.C.P. art. 561 should be without prejudice. Total Sulfide Services, Inc. v. Secorp Industries, Inc., 96-589 (La.App. 3 Cir. 12/11/96), 685 So.2d 514; De Salvo v. Waguespack, 187 So.2d 489 (La.App. 4 Cir.1966); St. Tammany Parish Sewerage District No. 7 v. Monjure, 95-0937 (La.App. 1 Cir. 12/15/95), 665 So.2d 801. Since the plaintiff fails to assign such as error, we need not address the issue.

      . We note from a review of the record that appellant filed a motion to substitute counsel of record on April 5, 2000. It is well established that a motion to substitute counsel is not considered a step in the prosecution or defense of an action. James v. Formosa Plastics Corp. of Louisiana, 2001-2056 (La.4/3/02), 813 So.2d 335.


author: 1MURRAY, Judge.

text:
    Sonja BARNEY v. PROGRESSIVE SECURITY INSURANCE COMPANY.
    No. 2003-CA-0435.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.
    Ivan A. Orihuela, Irvin & Orihuela, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Fortune’ A. Dugan, Jr., Morse, McGinty, Bordelon & Casier, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY).
   1MURRAY, Judge.

Plaintiff, Sonja Barney, appeals the district court’s granting of summary judgment in favor of defendant, Progressive Security Insurance Company [“Progressive”]. For the reasons that follow, we affirm.

On October 9, 1999, Sonja Barney, who was driving a vehicle owned by David and Jean Barney, was rear-ended by Lola Holland. Sonja Barney was pregnant at the time of the accident, and subsequently delivered a baby girl prematurely (at 24 weeks gestation) who later died. After settling her claim against Lola Holland, Sonja Barney filed suit against Progressive, the insurer of the vehicle owned by David and Jean Barney, alleging that Lola Holland was uninsured/ underinsured. Progressive answered the suit with a general denial and then moved for summary judgment on the grounds that Jean Barney had rejected uninsured [“UM’] coverage.

On November 22, 2002, the trial court granted summary judgment and dismissed the plaintiffs case against Progressive with prejudice, finding that there was no uninsured/underinsured coverage in effect on the date of the accident. From that judgment the plaintiff now appeals, asserting a single assignment of |2error: that the rejection of UM coverage by Jean Barney was not effective because the form she signed did not include the policy number.

Appellate courts review the grant or denial of a motion for summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id.

The Louisiana UM statute, contained in pertinent part in R.S. 22:1406(D)(l)(a)(i), requires that every automobile insurance policy covering vehicle(s) registered in Louisiana must include uninsured / under-insured coverage in an amount that is not less than the limits of bodily injury liability provided by the policy, except when “any insured named in the policy either rejects coverage, selects [slower limits, or selects economic-only coverage, in the manner provided in Item D(l)(a)(ii) of this Subsection.” That portion provides, in pertinent part:

D(l)(a)(ii) After September 1, 1987, such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.

In Maney v. Bennett, 97-0840 (La.App. 4 Cir. 11/19/97), 703 So.2d 152, this court applied the above-quoted statute in a case where the insurer alleged that the plaintiff had rejected the uninsured motorist coverage under his policy and moved for summary judgment on that basis. The plaintiff responded to the motion for summary judgment, and filed a cross motion for summary judgment against the insurer, stating that the UM rejection form was illegal and invalid because it did not contain the effective date of the rejection, the particular policy to which it referred nor the name of the insurance company. The plaintiff further argued that the missing information was necessary to execute a valid rejection form under LSA-R.S. 22:1406(D)(l)(a). The trial court granted the insurer’s motions for summary judgment, and this court affirmed. This court relied upon prior jurisprudence, noting that the statute itself does not state what information must be included in a valid rejection of UM coverage. Id. at p. 4, 703 So.2d at 154. Ultimately, the Maney court found that the insurer’s having placed the word “Application” in the space where the policy number should have been did not invalidate the waiver and that parole evidence was admissible to cure the absence of the Ueffective date, the policy number and the name of the insurer. See Alford v. Woods, 614 So.2d 1299, 1302 (La.App. 3rd Cir.1993). With regard to the policy number, the Maney court quoted the following language from Schwoch v. Sutor:

While it is true that the Supreme Court mentioned that the rejection should refer to a particular policy issued or to be issued, this requirement is not fatal to the rejection in this case. The fact that the rejection form fails to list a policy number, does not invalidate the rejection. The rejection form clearly rejects uninsured motorist coverage insofar as coverage applies in Louisiana and necessarily refers to the one particular policy which, absent a valid rejection, would provide such coverage in Louisiana. Inclusion of the policy number on the rejection form was not necessary. Schwoch v. Sutor, 559 So.2d 552, 554 (La.App. 2 Cir.1990). (Emphasis added).

Maney, supra, at p. 6, 703 So.2d at 155.

Other circuit courts of this state have agreed that the lack of a policy number on a UM rejection form does not invalidate rejection of UM coverage. Melton v. Miley, 98-1437 (La.App. 1 Cir. 9/24/99), 754 So.2d 1088, writ denied, 99-3089 (La.1/7/00), 752 So.2d 867; Franklin v. Coleman, 34,908 (La.App. 2 Cir. 8/22/01), 793 So.2d 467.

We adhere to our opinion in Maney and find it indistinguishable. The declarations page for the policy in question clearly states “Uninsured/ underinsured motorist-rejected” and states effective dates of May 21, 1999 to May 21, 2000. The policy contains five choices concerning underin-sured/ uninsured motorist bodily injury coverage. Jean Barney initialed the fifth choice; “I do not want UMBI coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/ underinsured Umotorist.” She signed the form the same day that the policy became effective. None of the parties controverts the fact that it is Jean Barney’s signature which appears on the form.

The language of the UM waiver form is valid under Louisiana law. Only one policy was issued to Barney; no party has alleged to the contrary. The UM rejection form was a part of the policy. It was signed and dated by Jean Barney on the same day it became effective. As stated above, the declarations page contains the policy number and states UM coverage was rejected. We therefore conclude that Jean Barney validly rejected UM coverage.

Without assigning it as error, the plaintiff also contends that Progressive could not raise its UM rejection argument in a motion for summary judgment because it had not asserted in its answer that UM coverage had been rejected. The plaintiff cites no jurisprudence to support this position. We reject this argument because Progressive clearly filed a general denial to the plaintiffs petition, which stated that the policy was the best evidence of its terms and conditions.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED

      . But see: Spera v. Lyndon Property Ins. Co., 00-1373 (La.App. 3 Cir. 3/7/01), 788 So.2d 56, writ denied, 01-0874 (La.6/1/01), 793 So.2d 193, wherein the Third Circuit expressly declined to follow the other circuits, stating: "[W]e interpret ‘properly completed’ to mean that every relevant blank on the form must be addressed ...” 788 So.2d at 60. It is interesting to note that the Louisiana Supreme Court denied writs in both Spera and in Melton v. Miley, supra, which reach opposite conclusions.

      . The following language appears on the form: "Uninsured/ Undersinsured motorist bodily injury coverage, referred to as ‘UMBI’ in this form, is insurance which pays persons insured by your policy, who are injured in an accident caused by an owner or operator of an uninsured or underinsured motorist vehicle.
      By law, your policy will include UMBI Coverage at the same limits as your Bodily Injury Liability Coverage unless you request otherwise. If you wish to reject UMBI coverage, select lower limits of UMBI coverage, or select Economic Only UMBI coverage, you must complete this form and return it to your insurance agent or insurance company. (Economic Only UMBI coverage may not be available form[)j your insurance company. In this case, your company will have marked options 3 and 4 below as 'not available'.”


author: 1MAX N. TOBIAS, JR., Judge.

text:
    Charles SANCHEZ v. Bryant HAWKINS and State Farm Mutual Automobile Insurance Company.
    No. 2003-CA-0156.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.
    Rehearing Denied Nov. 14, 2003.

      Robert G. Harvey, Sr., Maria Del Carmen Calvo Broce, Law Offices of Robert G. Harvey, Sr., New Orleans, LA, for Plaintiff/App elle e.
    James W. Hailey, III, Alayne R. Corcor-an, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for Defendants/Appellants.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.)
   1MAX N. TOBIAS, JR., Judge.

Bryant Hawkins and State Farm Mutual Automobile Insurance Company appeal a judgment of the trial court in favor of Charles Sanchez awarding him $35,000.00, plus judicial interest and costs. For the following reasons, we reverse.

This case arises from a rear-end automobile accident involving three vehicles. On 8 December 1999, the plaintiff, Charles Sanchez (“Sanchez”), was in his pickup truck on Chef Menteur Highway (“Chef Menteur”) in New Orleans when his truck was struck from the rear by another pickup truck driven by Bryant Hawkins (“Hawkins”), a defendant in this matter. The impact pushed Sanchez’s truck into a third vehicle driven by Brenda Blatcher (“Blatcher”), who is not a party to this litigation. While Sanchez contends that he was traveling along Chef Menteur in an easterly direction when he was struck from behind by Hawkins, Hawkins maintains that Sanchez had actually just emerged from a tire shop parking lot adjacent to the accident site and cut across three lanes of traffic, disregarding oncoming vehicles and giving Hawkins no opportunity to avoid the resulting crash. There were several witnesses to this accident, including Blatcher, pSanchez, Hawkins, and several employees of the tire shop adjacent to the accident site.

Sanchez subsequently filed suit against Hawkins and his insurer, State Farm Mutual Automobile Insurance Company alleging that Hawkins “suddenly and without warning ... changed from the far right lane into the far left lane, slamming into the rear of the petitioner’s vehicle.... ” The matter was set to be tried to a jury; however, the jury was waived and a bench trial held. The trial court found the damages to be $50,000.00 and found Hawkins 70% at fault and Sanchez 30% at fault.

Sanchez testified at trial that on the day of the accident, between 5:00 p.m. and 6:00 p.m., he was driving down Chef Menteur. Chef Menteur in the vicinity of the accident is a six-lane roadway with three lanes of travel in each direction, divided by a median; at the intersection that is the site of the accident, the road further divides to create a left-hand turn lane. A tire shop is located just before the intersection on this stretch of road that is adjacent to the accident site. Sanchez maintained that he was traveling in the left lane of Chef Ment-eur when he slowed to stop for a red light at the intersection in question. He claimed that he had just left his home after picking up some fishing equipment and that he was en route to visit a friend who owned a fishing camp on U.S. Highway 11 in New Orleans. Sanchez did not acknowledge that he was in the tire shop immediately before the accident. He testified that he did not see Hawkins’ truck approaching, but that he heard tires screeching on pavement approximately two to three seconds before he felt Hawkins’ truck hit his own from behind, pushing his vehicle into Blatcher’s vehicle, which was stopped in the left-hand turn lane, just to the left of the lane in which Sanchez claims to have been traveling. Sanchez testified that his truck was | ^approximately two car lengths from the intersection when he was hit and that the first time he saw Hawkins’ truck was just before he hit him. Sanchez testified that he remained in his truck and did not leave it following the accident, as instructed by a police officer responding to the scene. He denied being asked if he was injured by the police officer responding to the scene and testified that he did not talk with any of the witnesses to the accident following the accident.

Sanchez testified that as a result of the accident, he sustained a cut over his left eye, a knot on his head, neck strain, low back pain, and a cut on the side of his knee. He also testified that he is a diabetic. Sanchez did not present any doctor’s testimony at trial to substantiate his injuries, but rather introduced his medical records into evidence.

Hawkins testified at trial that the accident occurred between 5:45 p.m. and 6:00 p.m. and that he was heading home from work. He testified that he had his truck’s headlights on, not because it was dark, but rather because he habitually drove with the lights on. Hawkins testified that as he approached the intersection with Wilson Avenue, he was driving between 30 and 35 miles per hour, and that the main lanes of travel on Chef Menteur had the green light. As he approached the intersection, he witnessed Sanchez’s vehicle suddenly cut across the three lanes of travel to stop just short of Blatcher’s vehicle, coming to a stop while angled across the left lane of traffic, in which Hawkins was traveling at the time. He estimated the distance that he was from Sanchez’s vehicle was 90 to 100 feet as |4Sanchez began crossing from the tire shop. Hawkins testified that he hit his brakes, but that he could not stop in time to avoid the accident.

Blatcher testified by deposition. Although subpoenaed to appear at trial by the defendants, she did not appear, but rather indicated through a phone message that she was ill. In her deposition, Blatcher testified that the accident occurred around 6:30 p.m. She recalled that it was dark at the time and that she had her lights on. She testified that on the day of the accident, she left home and drove to the tire shop to pick up her nephew and her brother-in-law, who were waiting at the tire shop. She recalled getting out of her vehicle while she was there and conversing with Monroe Stamps, Quentin Stine, and Terrell Byrd (“Byrd”), who is her nephew. She further testified that while she was at the tire shop, Sanchez pulled up to the tire shop and that he asked Byrd to change a tire. The record is unclear as to whether she recalled whether Sanchez was successful in getting his tire changed. Blatcher testified that she backed out of the tire shop parking lot onto Chef Menteur and that she pulled across the three lanes of traffic into the left turn lane, which had a red light. She recalled hearing a vehicle’s tires screeching shortly thereafter, as if accelerating rapidly, and seconds later the sound of tires squealing a little further away. She testified that she did not see Sanchez pull across the road, but that she saw the impact as it happened in her rear-view mirror. She testified that she did not know either Hawkins or Sanchez personally-

Several employees of the tire shop in question apparently witnessed the accident. Officer Barnes testified that none of the witnesses were willing to fill out and sign a statement immediately following the accident. (In fact, a number of purported eyewitnesses did not appear for trial in violation of the subpoenas issued by the defendants.) Two witnesses, however, Richard Lee (“Lee”) and Bobby |KMagee (“Magee”), appeared and testified on behalf of the defendants. Lee and Magee testified that they were working at the tire shop at the time of the accident. Byrd failed to appear or testify.

Lee testified at trial that on the day of the accident, he was working at the tire shop, which was owned by his uncle. He stated that on the date of the accident, the hours of the tire shop were from 7:00 a.m. to 6:00 p.m. He recalled that Sanchez visited the tire shop just before the accident, which he estimated as occurring sometime around 5:45 p.m., and had pulled out of the lot and cut across the three lanes of traffic in an apparent attempt to get to the left turn lane. He testified that he had not spoken to Sanchez, but that he witnessed Sanchez leave the parking lot and cut straight across Chef Menteur to get into the left turn lane. He noted Sanchez was unable to clearly enter the turn lane given the angle of his vehicle. He further indicated that the accident occurred in the blink of an eye, which he estimated to be not more than a second or two. He estimated Hawkins’ truck was 50 feet away from Sanchez when Sanchez crossed in front of Hawkins and that Hawkins was going 45 miles per hour. Lee further opined that there was nothing Hawkins could do to avoid the accident. Lee recognized Blatcher as the aunt of a co-worker and acknowledged that she had also been a customer at the tire shop shortly before the accident.

Magee, Lee’s co-worker, testified that the accident occurred around 6:00 p.m. and that Sanchez pulled into the parking lot of the tire shop just before the accident. He stated that he was assisting a customer and that Byrd, another tire shop employee, approached Sanchez and that they had a discussion. He testified |fithat no one worked on Sanchez’s truck, and that Sanchez appeared angry and left hurriedly. Magee stated that Sanchez pulled across Chef Menteur in an apparent attempt to enter the left turn lane, but that he was unable to enter the lane due to a vehicle already in place there and that Sanchez was blocking at least two lanes of travel with his truck. He testified that when Sanchez pulled out of the parking lot, he spun his tires and they squealed. He further testified that Hawkins was approximately 50 feet from Sanchez as Sanchez pulled in front of him, that he heard Hawkins slam on his brakes, and indicated that Hawkins could not avoid the accident. He testified that he left before speaking with police about the accident. Magee was questioned about Sanchez’s appearance and testified that he believed that Sanchez was wearing a hat at the time of the accident and that his beard was shorter than it was at trial. He further testified that he recognized Sanchez as a regular customer of the tire shop.

Louis Richardson (“Richardson”) testified by deposition. Richardson stated that he resided at a fishing camp on U.S. Highway 11 in Louisiana and that Sanchez had fished on his property on a number of occasions. He denied knowing him other than as a casual acquaintance and testified that he never knew when Sanchez would appear to fish, but that it was usually during daylight hours. He was unable to shed any light on Sanchez’s whereabouts on the day of the accident or as to whether Sanchez might have been traveling to fish on his property.

Officer Gary Barnes, the first officer to report to the scene of the accident, testified at trial. In addition to that noted above, Officer Barnes testified that he was called to the scene at approximately 6:10 p.m. and arrived a few minutes thereafter. He testified that, due to the heavy traffic on Chef Menteur at that time, he instructed all the drivers involved in the accident to move their vehicles to a |7parking lot adjacent to the roadway. He referred to the police report and testified that he interviewed all of the witnesses at the scene and from their testimony, deduced that Sanchez had pulled across Chef Menteur from the tire shop parking lot and that this movement had caused the accident. He testified that he had asked everyone who was involved in the accident whether anyone was injured, and testified that only Monroe Stine, a passenger in Blatcher’s car, had indicated possible injury. He did not recall that Sanchez was injured in any way. He further testified that he issued citations to Sanchez for following too closely, improper lane usage, and reckless operation. He did not issue any citations to any other driver.

Photographs of the vehicles involved in the accident were admitted into evidence. A close examination of the photographs reveals that the damage to Hawkins’ truck was to the center and immediate right of the center of the front of his truck and the damage appears to have resulted from impact with a pointed, or angled surface. The damage to Sanchez’s truck in the rear is isolated to the left rear quadrant of the vehicle, around the left rear taillight. The photographs clearly indicate that Hawkins did not directly rear-end Sanchez’s truck as it would have had they been traveling in the same direction, but rather corroborate the eyewitnesses’ testimony that Sanchez’s truck was catty-corner angled across the road, attempting to enter the turn lane when struck.

The defendants had also subpoenaed several other eyewitnesses to testify at trial, including the two passengers in Blatcher’s vehicle, but they did not appear for trial. Although the witnesses had been deposed earlier in the litigation, the trial court would not allow the submission of their deposition testimony into the record. As such, the trial court did not consider their testimony.

| «The trial court ruled that Sanchez was 30% at fault for the accident; the remaining 70% fault was allotted to Hawkins. The trial court, in its reasons for judgment, found that Sanchez, contrary to his testimony, attempted to cross two lanes of the eastbound traffic on Chef Menteur and that his negligence, in part, caused his damages. The trial court further found that Hawkins was traveling in excess of the speed limit at the time of the accident and that his excessive speed was a proximate cause of the accident, as he was unable to stop in time to avoid the accident. No other reason was given for the finding of negligence on the part of Hawkins. The trial court indicated in its reasons for judgment that the trial testimony was varied and inconsistent with regard to many factors, including the location of the two vehicles, the speed of Hawkins’ vehicle, the time frame within which the accident occurred, and even as to what type of hat, if any, Sanchez was wearing at the time of the accident. The trial court was further disturbed by the fact that the eyewitnesses who did appear at trial to testify apparently declined to get involved in the investigation of the accident when approached by the police officer responding to the accident and that several other witnesses who were subpoenaed did not appear at trial in violation of the subpoenas.

The defendants assign six errors to the trial court. They first argue that the trial court erred in finding Hawkins 70% at fault and Sanchez only partially responsible for the accident in question when the evidence presented at trial | establishes that Sanchez pulled out of the tire shop in front of Hawkins and caused the accident. Second, the defendants assert that Sanchez is not entitled to an award of $50,000.00 insofar as he did not carry his burden of proof at trial and failed to present medical testimony to support his personal injury claims. The defendants also contend that the trial court erred in discounting the testimony of several eyewitnesses as “suspicious” when their testimony was consistent with the great weight of the evidence presented at trial. Finally, the defendants take issue with the trial court’s refusal to admit into evidence the deposition testimony of three eyewitnesses who failed to appear for trial, when those depositions were taken for all purposes under the Louisiana Code of Civil Procedure.

The defendants’ primary contention is that the trial court erred in finding Hawkins liable for 70% at fault for the accident and Sanchez only 30% at fault. They vehemently argue that the only witness whose testimony can be completely discredited is Sanchez’s. He maintained, in his pleadings and in his trial testimony, that he was traveling down Chef Menteur just before the accident and that he did not visit the tire shop on that day. Every other witness to the accident who testified at trial testified that Sanchez had been at the tire shop just before the accident. The only individual who might have offered some credence to the plaintiffs story is Richardson; but Richardson testified that he had no knowledge as to whether Sanchez intended on visiting him that night. We do note, however, that Richardson indicated that he was accustomed to seeing Sanchez during daylight hours to fish. The trial court, after hearing all of the evidence, did not find that Sanchez’s rendition of the accident or even of his whereabouts just prior to the |inaccident were supported by the evidence; obviously, the trial court did not find him credible in all respects. Nevertheless, even in light of the finding by the trial court that Sanchez was in error regarding the bare facts of the accident, the trial court still rendered judgment in his favor and found him only 30% at fault for the accident.

A court of appeal may only set aside a finding of fact by a trial court if that finding is clearly wrong or manifestly erroneous based upon the evidence presented at trial and the record on appeal. Stobart v. State through DOTD, 617 So.2d 880, 882 (La.1993). The reviewing court must look to whether the trial court’s findings were reasonable, in light of the evidence presented at trial, and not to whether the court was correct or incorrect in its findings. Perry v. Anderson, 99-0230, p. 3 (La.App. 4 Cir. 1/12/00), 751 So.2d 374, 376.

The “manifest error — clearly wrong” standard of review has been explained as follows:

“It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous — clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. When the findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly |nbased upon a credibility determination. But where such factor’s are not present, and a factfinder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.”

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted; emphasis added).

While a trial court’s findings of facts may not be reversed unless clearly wrong or manifestly erroneous, this court does have an affirmative constitutional duty to review facts. La. Const, art. V, § 10B; Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216; Burns v. UHS of New Orleans, Inc., 2002-1514 (La.App. 4 Cir. 2/19/03), 841 So.2d 51. It is because of this duty that we are required to determine whether the trial court’s decision was clearly wrong based on the evidence in the record or without evidentiary support. Id. The reviewing court must do more than just simply review the record for some evidence that supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding are clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but rather whether the factfinder’s conclusion is a reasonable one in light of the evidence. Id. The reviewing court must always keep in mind that “if the trial court’s or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 882-3, citing, Housley v. Cerise, 579 So.2d 973 (La.1991), quoting, Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). However, as cautioned by the Supreme Court:

| ^Notwithstanding the Court’s earlier guidance to reviewing courts in Stobart v. State through DOTD, 617 So.2d 880 (La.1993), it was not our purpose in that case to mandate that the trial court’s factual determinations cannot ever, or hardly ever, be upset.

Ambrose, 93-3009, p. 8, 639 So.2d at 221 (emphasis added).

The trial court did not find Sanchez to be totally credible and completely discounted his testimony as to the facts of how the accident occurred. While Sanchez maintained that he had been driving down Chef Menteur and that Hawkins had changed lanes to strike his vehicle from the rear, it is clear from the testimony of every other witness that he, Sanchez, had, in fact, been parked or stopped in the parking lot of the tire shop in question just prior to the accident and that the accident happened immediately after he pulled out of the parking lot hurriedly and crossed at least two lanes of traffic. (Sanchez, interestingly enough, never alleged that Hawkins was speeding or that Hawkins’ speeding was a proximate cause of the accident. In fact, no material evidence of speeding was presented at the trial on the merits.) Hawkins testified that he was driving between 30 and 35 miles per hour down Chef Menteur. Sanchez could not offer any estimate of Hawkins’ speed and the eyewitnesses to the accident had a range of estimates. Blatcher did not see Hawkins’ truck prior to the accident and offered np testimony regarding his speed. Lee testified that he believed that Hawkins was driving “around about the [speed] limit” and estimated his speed at forty-five or fifty miles per hour. Sanchez’s counsel attempted to impeach Lee with regard to this testimony, and introduced into evidence portions of Lee’s deposition in which |13he testified that Hawkins “must have been doing the limit, I’d say at least about sixty.” Under cross-examination, Lee indicated that he would not waver from his earlier testimony, but further testified that he had also estimated that Hawkins was driving forty-five miles per hour just before the accident. Magee testified that he estimated that Hawkins was driving the speed limit or a little over, which he apparently believed was forty-five miles per hour. What is striking is that the testimony of both of these witnesses indicates that they were under the impression that Hawkins’ speed was in accordance with the speed limit. Neither witness testified or indicated that they believed or were under the impression that Hawkins was traveling at an excessive or unsafe rate of speed.

Sanchez argues that Magee and Lee were successfully impeached at trial. He points to the discrepancies in their testimonies regarding the status of the traffic signals at the intersection, who spoke with Sanchez at the tire shop, the color of Sanchez’s truck, and how many seconds after Sanchez pulled out of the tire shop parking lot that the accident happened. While there are some discrepancies in their testimony, the overall testimony of Magee and Lee clearly establishes that Sanchez was at the tire shop just prior to the accident and that he hurriedly pulled out of the parking lot across at least two lanes of traffic before being hit almost immediately by Hawkins.

The trial court was also apparently troubled by the inconsistencies in the testimony offered by the eyewitnesses as to details such as what kind of hat Sanchez was wearing, whether Sanchez had a beard, the exact service Sanchez attempted to have performed at the tire shop, and how fast Hawkins was going just |ubefore the accident. These details, however, are not particularly impressive when confronted with the basic fact that all witnesses, save Sanchez, agreed that the accident was caused by Sanchez crossing two lanes of traffic in a hastened attempt to reach the turn lane. As this court has noted in the past in other cases, it would perhaps be more suspicious if the eyewitnesses were more uniform in their testimony regarding what the plaintiff was wearing and whether he had a beard. Kelly v. West Cash & Carry Building Materials Store, 99-0102, p. 25 (La.App. 4 Cir. 10/20/99), 745 So.2d 743, 759. In Kelly, a convenience store employee sued her employer for false imprisonment after she was questioned regarding theft from the store. She attempted to impeach two witnesses to the incident by pointing out discrepancies between affidavits executed by the witnesses and their deposition testimony. The court in Kelly noted that “the discrepancies, such as they were, were such as one would normally expect when the same event is recounted by different persons and at different times.” Id. The court likened the discrepancies to “minor discrepancies” found in the witness testimony in Keller v. Schwegmann Giant Supermarkets, Inc., 604 So.2d 1058, 1061 (La.App. 4 Cir.1992), which involved conflicting testimony surrounding the events of a malicious prosecution case arising from apprehension of an alleged shoplifter on the number of baskets rung up and whether the plaintiff was last or next-to-last in line at the time of the incident complained-of. The court noted that such discrepancies were not relevant to the central issue of whether probable cause to arrest existed. Similarly, in the case at bar the discrepancies highlighted by Sanchez and the trial court cannot diminish the simple fact that Sanchez’s version of his actions prior to and during the accident directly contradict the facts of the accident as recited by every otherj 1K witness, which are at least basically consistent as to how the accident happened. Even the photographs of the damage to the vehicles following the accident do not substantiate Sanchez’s version of events.

The defendants point to the decision rendered by this court in Perry v. Anderson, 99-0230 (La.App. 4 Cir. 1/12/00), 751 So.2d 374. Perry involved a motor vehicle accident in which the defendant apparently made an improper left turn in front of the plaintiff, causing the accident. In Perry, the responding officer issued a citation to the defendant and none to the plaintiff. Following a trial on the merits, the trial court found in favor of the defendant. This court overturned that decision and determined that, based on the record on appeal, the defendant was clearly liable for the accident, insofar as she turned left in front of the plaintiff from the middle lane of the street on which she was traveling, and that the plaintiff had established by a preponderance of the evidence that he was injured as a result of the accident. While the Perry decision at first blush seems to support a reversal of the trial court, we note that there is insufficient information regarding any credibility determinations that may or may not have been instrumental in the trial court’s judgment.

However, in the case at bar, we find that the testimony and evidence, when taken as a whole, do not support the judgment entered by the trial court. Sanchez’s testimony regarding the accident is simply not credible upon any reasonable, rational review of the evidence. In fact, the specific acts of negligence on the part Hawkins complained of by Sanchez have essentially been disproved by the unreliable testimony of Sanchez, who the trial court even alludes to the fact that he was not truthful regarding the events in question, and by the substantially consistent testimony of other witnesses regarding Sanchez’s actions just prior to 11fithe testimony. Hawkins’ speed was not a proximate cause of the accident. The proximate cause of the accident was Sanchez’s pulling into Chef Menteur, cutting in to the path of Hawkins who, being confronted with a situation, was unable to avoid colliding with Sanchez’s vehicle. Sanchez’s apparent fabrication regarding the facts of accident, compounded with the complete lack of any evidence or indication that any witnesses, other than him and Hawkins, would have any motive to fabricate their testimony regarding the accident, makes it simply unreasonable to find for Sanchez in this case.

Insofar as we have determined that the evidence presented at trial and the record on appeal do not support the judgment of the trial court insofar as any fault on the part of Hawkins and as we find the trial court’s judgment clearly wrong, we preter-mit a decision of the remaining assignments of error, for they are moot. The judgment of the trial court is therefore reversed and judgment is entered for the defendants.

REVERSED AND RENDERED.

      . Technically the appealed judgment casts no one in judgment; it merely awards the plaintiff $35,000.00, interests, and costs.

      . We take judicial notice that daylight savings time was not in effect and that the accident occurred approximately two weeks prior to the winter solstice, the day of the year with the least sunlight in this hemisphere. It was either dark or dusk at the time of the accident.

      . We take judicial notice that a vehicle traveling 30 miles per hour will travel approximately 44 feet in one second and approximately 51 feet if proceeding at 35 miles per hour.

      . In his deposition that was used in part at the trial, he referred to the period of time as "not even a good second."

      . We note that although the trial court seems to indicate that testimony that Sanchez was wearing some kind of hat bolsters his claim that he was going fishing at the time of the accident, Sanchez himself testified that he was not wearing a hat at the time of the accident.

      . The trial court was apparently troubled by the fact that several witnesses disregarded the trial subpoenas issued by the defendants and failed to present testimony regarding the accident, but then contrarily seems to question the "lengthy testimony” of the two individuals who did appear in accordance with the trial subpoenas because they had previously indicated an unwillingness to get involved.

      .Although there are six assignments of error, many are somewhat duplicative, and are discussed together.

      . It is not subject to dispute that Sanchez pulled from the tire shop across the eastbound lanes of traffic of Chef Menteur. His testimony to the effect that he was not at the tire shop is obviously terminologically inexact.

      . Although some of the witnesses opined that the speed limit at the accident site was 45 miles per hour, the ordinances of the city of New Orleans set the speed limit at 40 miles per hour. New Orleans Ord. § 154-1194.

      . In fact, we note that none of the witnesses knew Hawkins prior to the accident while the tire shop employees did know Sanchez, on sight at least, as a regular customer.


author: 1MICHAEL E. KIRBY, Judge.

text:
    Cheryl A. DUPRE v. STATE of Louisiana BOARD OF REVIEW, Ray Fredlund, Chairman.
    No. 2003-CA-0153.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 2003.
    Cheryl A. Dupre, New Orleans, LA, In Proper Person, Plaintiff-Appellant.
    Norbert C. Rayford, Peter G. Wright, Louisiana Department of Labor, Office of Regulatory Services, Baton Rouge, LA, for DefendanVAppellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.).
   1MICHAEL E. KIRBY, Judge.

Plaintiff, Cheryl A. Dupre, appeals a trial court judgment, affirming the decision of the defendant, Louisiana Board of Review (“Board”), denying unemployment compensation benefits to plaintiff. We affirm.

Plaintiff worked for Touro Shakspeare, Inc. (“Touro”) from September 15, 2000 until June 13, 2001, as a Licensed Practical Nurse. In addition to working full-time, plaintiff was enrolled in college. On June 14, 2001, plaintiff submitted a written letter of resignation to Touro.

On June 15, 2001, plaintiff began working as a Licensed Practical Nurse for another company. On June 16, 2001, plaintiff received notice from the Louisiana State Board of Practical Nurse Examiners that her nursing license was suspended. Plaintiffs new employer discharged her due to the license suspension.

Plaintiff filed for unemployment compensation benefits against Touro. Plaintiffs request for benefits was denied by the Louisiana Department of Labor and an appeal was taken. The Administrative Law Judge conducted a hearing on August 14, 2001 and affirmed the denial of benefits, effective June 13, 2001, plaintiffs last date of employment with Touro. The opinion of the Administrative Law Judge states in pertinent part:

RThe facts in this case show that the claimant left her employment voluntarily because she was dissatisfied with the work schedule and her salary. The evidence and testimony presented shows that the claimant’s salary and work schedule remain the same as it was at the time of hire. The claimant worked under customary working conditions and there were no changes made to those conditions during her employment. It is concluded the claimant left her employment for reasons which are personal in nature and not the result of any substantial changes made to the employment by the employer.

An appeal of the Administrative Law Judge’s decision was filed with the Board. The Board upheld the findings and affirmed the decision. A petition for judicial review was filed in the Civil District Court for the Parish of Orleans on September 26, 2001. The trial judge affirmed the denial of benefits and this appeal followed.

In her first assignment of error, plaintiff argues that the trial court erred in its application of the standards of judicial review by not considering the evidence from the transcript of the hearing before the Administrative Law Judge. Plaintiff also contends that the trial court was clearly wrong in its ruling because plaintiff “contradicted testimony from the transcript of hearing before ALJ [Administrative Law Judge] and attempted to offer evidence that [sic] record and was restricted by the trial judge.”

The plaintiff incorrectly states that the standard of review in this matter is the “manifest error” or “clearly wrong” standard. The applicable standard of review in this case is set forth in La. R.S. 23:1634(B), which provides in part:

In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of preview, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file with the court such additional or modified findings and conclusions, together with a transcript of the additional record.

The record in this case includes the testimony and documentary evidence presented to the Administrative Law Judge. In affirming the Administrative Law Judge’s decision, the Board stated that it did so “after due consideration of the decision and the complete record herein.” The trial court affirmed the Board, stating that it “has reviewed the records filed herein,” and “considered the argument of counsel, the law and the evidence.” Therefore, there is no merit to the plaintiffs contention that the trial court did not consider the testimony and other evidence presented before the Administrative Law Judge.

In the absence of fraud, the findings of fact by the Board are conclusive if supported by sufficient evidence. La. R.S. 23:1634(B); CEG Welding Supply, Inc. v. Moore, 31,167, p. 3 (La.App. 2 Cir. 12/14/98), 723 So.2d 524, 526. Under La. R.S. 23:1634, our review is limited to whether the facts: 1) are supported by the evidence, and 2) whether the facts justify the action taken as a matter of law. Woods v. Cameco Industries, Inc., 2001-0298, p. 7 (La.App. 1 Cir. 3/28/02), 815 So.2d 370, 375.

Plaintiffs testimony before the Administrative Law Judge clearly shows that she quit her employment voluntarily because she was dissatisfied with her work schedule and her salary. Specifically, plaintiff testified that her work schedule and hourly salary were set in the initial hiring agreement and that no changes were made thereto by her employer. Plaintiff further verified the statements made in her letter of resignation, more particularly, that she resigned “due to personal reasons Rand the type of scheduling available which does not accompany every other weekend off.” When specifically asked by the Administrative Law Judge if she left her employment voluntarily, plaintiff responded, “yes”.

In her resignation letter, offered into evidence by plaintiff as Exhibit C-l, plaintiff stated that she was resigning “due to personal reasons and the type of scheduling available which does not accompany every other weekend off.” La. R.S. 23:1601(l)(a), concerning disqualification for benefits, provides:

An individual shall be disqualified for benefits:
(l)(a) If the administrator finds that he has left his employment from a base period or subsequent employer without good cause attributable to a substantial change made to the employment by the employer. Such disqualification shall continue until such time as the claimant can requalify by demonstrating that he:
(ii) Has not left his last work under disqualifying circumstances.
The judgment of the trial court rendered in favor of the Board states:
The evidence in this case is the claimant’s own testimony and her letter of resignation, which is claimant’s exhibit number 1. They both verify the fact that she quit her job for “personal reasons”. R.S. 23:1601(1) defines “good cause” as a quit which is prompted by substantial changes in the working conditions made by the employer.
Clearly the claimant’s “personal reasons” does [sic] not qualify as good cause.

After review of the record, including the testimony and other evidence presented to the Administrative Law Judge, we find that the factual findings set forth in the Administrative Law Judge’s opinion and adopted by the Board are based on sufficient evidence and the action taken is justified as a matter of law. The evidence shows that plaintiff voluntarily resigned from her employment with | KTouro without good cause. The trial court did not err in affirming the Board’s decision denying benefits to plaintiff.

Plaintiffs argument that the trial court improperly restricted her attempts to offer evidence in that court is without merit because La. R.S. 23:1634(B) does not permit the filing of additional evidence in the trial court. Furthermore, plaintiffs contention that in the appeal of the Board’s decision to the trial court, she contradicted testimony from the transcript of the hearing before the Administrative Law Judge is of no moment. Judicial review of unemployment proceedings does not entail the weighing of evidence, drawing of inferences, re-evaluation of evidence, or substituting the views of the court for those of the board of review as to the correctness of facts. CEG Welding Supply, Inc. v. Moore, supra.

In plaintiffs second assignment of error, she argues that the trial court abused its discretion in relying on an exhibit presented to the Board, when the exhibit failed to include the underlying facts regarding plaintiffs reasons for quitting her job. Specifically, plaintiff argues that exhibit Cl, her resignation letter, does not include all the facts that were presented in plaintiffs testimony before the Administrative Law Judge.

The Administrative Law Judge certainly did not abuse his discretion in considering plaintiffs resignation letter in arriving at his determination that the plaintiff left her employment for reasons that are personal in nature and not because of any substantial changes made to the employment by the employer. Additionally, at the hearing, the Administrative Law Judge questioned plaintiff extensively about the circumstances of her resignation from employment with Touro. Nothing in the plaintiffs testimony supports a finding that her resignation |fiwas due to changes in her working conditions. We find no merit in this assignment of error.

For the reasons stated above, we affirm the judgment of the trial court.

AFFIRMED.