author: 1 .GUIDRY, J. | FITZSIMMONS, Judge, 11PETTIGREW, J.,

text:
    Susan Diane Starks ROSS v. Billy Wayne ROSS.
    No. 2001 CA 2691.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      W. George Bayhi, Baton Rouge, Counsel for Plaintiff/Appellant Susan Diane Starks Ross.
    Mark V. Marinoff, Frank J. Saia, Baton Rouge, Counsel for Defendant/Appellee Billy Wayne Ross.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   1 .GUIDRY, J.

A former spouse appeals a partial judgment declaring that renewal commissions received by her ex-husband on insurance policies issued prior to their marriage are civil fruits subject to the ex-husband’s declaration of paraphernality. Finding that the renewal commissions were the civil fruits of certain juridical acts, specifically policies of insurance solicited by the ex-husband and issued prior to the establishment of the community property regime, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties to this appeal, Billy Wayne Ross and Susan Diane Starks were married on May 29, 1992. Shortly after their marriage, Mr. Ross filed a declaration of paraphernality on July 10, 1992, wherein he declared:

that in accordance with the provision of Article 2339 of the Civil Code of Louisiana, as amended by Act 709 of 1979, he reserves all fruits of his paraphernal and separate property, wherever located and however administered, whether such fruits be natural or civil, including interest, dividends and rents, bonuses, royalties, delay rentals and shut-in payments arising from mineral leases on separate property, or from the result of labor, or otherwise, for his own separate use and benefit and that it is his intention to administer such property separately and alone.

Also in the declaration, Mr. Ross acknowledged that a regime of acquets and gains otherwise existed between him and Ms. Starks.

Four years later, Ms. Starks filed for divorce and, after the expiration of 180 days, a judgment of divorce was granted the parties on June 11, 1997. She then filed a petition to partition community property on November 6, 1997. In that petition, among other claims, Ms. Starks asserted that Mr. Ross had used community funds to satisfy his separate debts. In his answer to the petition to partition community property, Mr. Ross denied Ms. Starks’ assertion, claiming that |sthe income in question, which he received from his insurance business, was his separate property subject to the declaration of par-aphernality.

Following a period of discovery and the filing of supplemental pleadings, the trial court held a hearing on the singular issue of whether the income derived from Mr. Ross’ insurance business was his separate property and thus subject to the declaration of paraphernality. In a partial judgment signed May 1, 2001, the trial court made the following decrees: (1) that the renewal commissions for policies issued before May 29, 1992, are classified as Mr. Ross’ separate property; (2) that Ms. Starks bore the burden of proving any entitlement to a pro rata share of renewals received by Mr. Ross after the establishment of the community regime, but prior to the filing of the declaration of parapher-nality; and (3) that any new policies issued during the existence of the community, and renewal commissions derived therefrom, subject to deductions based on any efforts, skills or industry exerted by Mr. Ross following the termination of the community regime, were community property.

ASSIGNMENTS OF ERROR

Ms. Starks appeals, contending that the trial court committed error based on the following determinations:

1. The renewal commissions earned by the Appellee were civil fruits and constituted separate property, which could be reserved to sole administration and control of the Appellee.
2. The Appellant bears the burden of proof in showing that the renewal commissions earned as a result of the labor, skill, and industry of the Appellee are separate in nature, despite the fact that such earnings are presumptively community assets as a matter of law.
3. The renewal commissions earned by the Appellee during his marriage to the Appellant were not the result of his effort, skill, effort and industry; and
|44. Policies sold by the Appellee prior to his marriage to the Appellant constituted a “thing” from which fruits could be derived.

DISCUSSION

In addressing the issues raised by Ms. Starks in this appeal, we begin by outlining the basic principles of law governing this matter. Louisiana law provides that things in the possession of a spouse during the existence of a regime of acquets and gains are presumed to be community. La. C.C. art. 2340. However, either spouse may rebut this presumption. La. C.C. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving that the property is separate in nature. Knighten v. Knighten, 00-1662, p. 7 (La.App. 1st Cir. 9/28/01), 809 So.2d 324, 331, writ denied, 01-2846 (La.1/4/02), 805 So.2d 207.

Property acquired by a spouse prior to the establishment of a community property regime is separate property. La. C.C. art. 2341. Yet, the natural and civil fruits of separate property produced during the existence of the community property regime are community unless a spouse reserves them as his separate property in a declaration made by authentic act or an act under private signature duly acknowledged. La. C.C. art. 2339.

We will begin our analysis by first discussing Ms. Starks’ first and fourth assignments of error. Ms. Starks asserts in these assignments of error that the trial court erred in holding that the insurance policies issued prior to the establishment of the community property regime were “things” and that the renewal commissions derived therefrom during the existence of the community property regime were fruits.

The trial court relied on several cases where the courts of this state found that renewal commissions derived from policies generated from the effort, skill, and industry of a spouse during the existence of the community property regime were community property. The trial court then reasoned that policies generated |Bprior to the establishment of the community property regime were Mr. Ross’ separate property. Based on Mr. Ross’ declaration of para-phernality, the trial court further held that the renewal commissions on those policies generated prior to the establishment of the community property regime were'also Mr. Ross’ separate property. See Futch v. Futch, 26,149 (La.App. 4th Cir. 9/23/94), 643 So.2d 364; Michel v. Michel, 484 So.2d 829 (La.App. 1st Cir.1986); Boyle v. Boyle, 459 So.2d 735 (La.App. 4th Cir.1984), writ denied, 462 So.2d 651 (La.1985).

To refute this finding by the trial court, Ms. Starks emphasizes that the declaration filed by Mr. Ross, pursuant to La. C.C. art. 2339, only applied to the “natural and civil fruits of the separate property.” In her specific assignment of error in regard to this issue, Ms. Starks asserts that the pre-community policies were not things from which fruits could derive. However, in her arguments in support of this assignment of error, Ms. Starks asserts that Mr. Ross’ insurance business could not be considered a thing or asset from which civil fruits could be derived. We note that the trial court found that the thing or asset from which civil fruits derived were the actual policies of insurance, and not Mr. Ross’ agency. Furthermore, La. C.C. art. 551 provides that “[e]ivil fruits are revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interest, and certain corporate distributions.” (Emphasis added.) Since the record shows that Mr. Ross received renewal commissions based on his contract with State Farm and renewals of pre-exist-ing insurance policies, and since both the contract and the insurance policies are juridical acts, we find no error in the trial court’s determination that the policies are things or assets from which civil fruits may be derived. See also Futch, 26,149 at 3, 643 So.2d at 367.

Nevertheless, Ms. Starks contends that the renewal commissions at issue should not be considered civil fruits, but rather they should be deemed Mr. Ross’ |fisalary because the majority, if not all of his income is attributed to the renewal commissions. We disagree.

In Kyson v. Kyson, 596 So.2d 1308 (La.App. 2nd Cir.1991) (on rehearing), writ denied,, 599 So.2d 314 (La.1992), the second circuit held that although Mr. Kyson referred to his occupation as that of a rental manger, that he had listed his occupation as rental manager on his tax returns, and that the income from the rental property represented a disproportionate amount of his total income, it was of no moment without proof that the rental income was attributable to substantial labor exerted by Mr. Kyson during the community. Kyson, 596 So.2d at 1315. In affirming the trial court’s determination that the rental income was Mr. Kyson’s separate income, the court stated that his “personal management efforts toward these four properties during the marriage cannot be viewed on this record as so extraordinary as to result in his abdication of the rentals he expressly reserved unto himself.” Kyson, 596 So.2d at 1316.

In Gautreau v. Gautreau, 96-1548 (La.App. 3rd Cir. 6/18/97), 697 So.2d 1339, writ denied, 97-1939 (La.11/7/97), 703 So.2d 1272, the court found that to the extent the income derived by Ms. Gautreau from her separate property (stock in a corporation) was paid to her directly because of her “effort, skill or industry” and not simply passive income accruing as the result of corporate distributions or the increase in value of the corporation due to her labor, the income was community property. Gautreau, 96-1548 at 12-13, 697 So.2d at 1349.

Finally, in Paxton v. Bramlette, 228 So.2d 161 (La.App. 3rd Cir.1969), writs denied, 255 La. 241, 230 So.2d 92 (La.1970), that court also held that the salary paid to Mrs. Bramlette was community property because it resulted from “substantial services” performed by her for a corporation in which she held an 82 percent interest. Paxton, 228 So.2d at 164. (Paxton was decided under La. C.C. art. 2386, a law prior to La. C.C. art. 2339 that governed the declaration of separate 17property during the existence of a community property regime.) Thus, as these cases illustrate, in order to disprove that the renewal commissions received by Mr. Ross were not civil fruits, it was necessary to prove that substantial labor was exerted by Mr. Ross to obtain the renewal commissions during the existence of the community property regime.

In her third assignment of error, Ms. Starks contends that the trial court erred in finding that Mr. Ross expended no effort, skill or industry, during the existence of the community property regime, to keep the pre-community policies generated in effect. Had the trial court found that Mr. Ross had expended any significant effort, skill or industry in effecting the renewal of policies pre-existing the community during the existence of the community property regime, then the commissions would constitute community property and be subject to a claim for partition, to the extent or percentage community labor or “effort, skill, and industry” was attributable to the renewal so effected. See La. C.C. art. 2340; cf Futch, 26,149 at 6, 643 So.2d at 369 (wherein the court held that Mr. Futch was entitled to deduct from the gross renewal commissions, found to be community property in that ease, an amount representative of his individual efforts and investments post-termination in producing these commissions).

A trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Biondo v. Biondo, 99-0890, pp. 4-5 (La.App. 1st Cir. 7/31/00), 769 So.2d 94, 99. Based on |sour review of the record, we find that the evidence supports the trial court’s determination. Although Mr. Ross may have listed the renewal commissions as income on his income tax statements and such income comprised a disproportionate share of his total income, the evidence shows that Mr. Ross received this income as a result of little or no effort, skill, or industry exerted on his part during the community. See Kyson, 596 So.2d at 1315. Specifically, Mr. Ross testified that most of the renewal commissions received by him stemmed from policies he had actively solicited years previously. At the time of trial, Mr. Ross testified that he had been selling insurance for State Farm since January 1, 1963, and had been compensated on a strictly commission basis by State Farm since 1965.

Mr. Ross further testified, at trial and in deposition, that during the existence of the community property regime, he would go to the office between three to five days out of the week and stay for a periods of three to ten hours. While at the office, Mr. Ross testified that a majority of his time was spent in office management activities such as purchasing advertising, ordering office supplies, and taking care of maintenance concerns. He also stated that the only active effort he made regarding renewal policies was to answer questions from clients concerning their policies and occasionally sending out notices to some, not all, clients whose policies were at risk of lapsing. Mr. Ross testified that he neither advertised nor actively pursued contacting clients in an effort to secure renewals on existing policies.

Thus, considering the cases presented, we find no merit in Ms. Starks’ assertion that the simple designation of the renewal commissions as salary or income bars a finding that the renewal commissions are civil fruits subject to the declaration of paraphernality. Rather, there must be further proof that the civil fruits, in this case, the renewal commissions, resulted from the substantial labor or | fleffort, skill and industry of Mr. Ross, expended during the existence of the community property regime, in order to be classified as community property. See La. C.C. art. 2338; Kyson, 596 So.2d at 1315. Based on the evidence in the record before us, we cannot say that the trial court was clearly wrong in determining that Mr. Ross had not exerted substantial effort, skill or industry during the existence of the community property regime to affect the renewal of existing policies.

Having found no error in the trial court’s conclusion that the renewal commissions received after the effective date of the declaration of paraphernality are Mr. Ross’ separate property, we pretermit discussion of Ms. Starks’ remaining assignment of error.

CONCLUSION

Thus, considering the foregoing, we affirm the trial court’s judgment declaring that the renewal commissions received after the effective date of the declaration of paraphernality are Mr. Ross’ separate property. Costs of this appeal are assessed to Ms. Starks.

AFFIRMED.

FITZSIMMONS, J., agrees and assigns additional reasons.

| FITZSIMMONS, Judge,

agreeing, with additional reasons.

I agree with the opinion and respectfully assign additional reasons.

Assuming Mr. Ross had the burden of proof, he rebutted any presumption of community property. Mr. Ross successfully proved that the renewals were passive income and not derived from substantial labor on his part. In this particular case, the renewal commissions are more akin to interest or rental payments, which are usually classified as civil fruits. These periodic or interest-like payments were derived from Mr. Ross’s State Farm contract and the original insurance contracts sold to Mr. Ross’s clients. In response, Ms. Stark failed to bring forth sufficient specific evidence to rebut the showing by Mr. Ross. If she had successfully shown that Mr. Ross had expended substantial labor to achieve the renewals, the character of the renewal commissions would be different. They would then be more appropriately classified as income. Such “income” renewals earned during a marriage would be community property.

PETTIGREW, J., dissents, and assigns reasons.

11PETTIGREW, J.,

dissenting.

I must respectfully dissent from the majority. Mr. Ross had no ownership interest in the insurance policies that renewed during the existence of the community of acquets and gains between him and his former wife. In my humble opinion, the commissions earned on these renewal premiums fit no description of separate property or asset that produces natural or civil fruits as utilized in La. Civ.Code art. 2339.

Pursuant to La. Civ.Code art. 2338, community property consists of “property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse.” Premiums earned during the community of acquets and gains on renewal policies are nothing more than wages or compensation earned during the community of acquets and gains and are therefore community property.

      . By order of the divorce decree, Ms. Starks had to resume the use of her maiden name. Accordingly, we will refer to her as Ms. Starks in the body of this opinion.

      . In response to a request by Ms. Starks, and following a status conference and briefing by the parties, the trial court issued an amended judgment on June 15, 2001, wherein it certified that the partial judgment signed on May 1, 2001, was a final judgment for purposes of appeal. See La. C.C.P. art. 1915(B).

      . The text of former La. C.C. art. 2386 read as follows:
      The fruits of the paraphernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of acquets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. The said instrument shall be executed before a Notary Public and two witnesses and duly recorded in the Conveyance Records of the Parish where the community is domiciled.
      If there is no community of gains, each party enjoys, as he chooses, that which comes to his hand; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them.


source: Caselaw Access Project

author: JjlFOIL, j.

license: Public Domain

text:
    Salah SALAIMAN and Angela Simpson Individually and on Behalf of Their Minor Deceased Son, Demond Thaddeus Simpson v. LOUISIANA CASINO CRUISES, INC., the Estate of Melvin T. Cage, State Farm Mutual Automobile Insurance Company, Christopher A. Haymon, Patterson Insurance Company, and Imperial Fire & Casualty Insurance Company. Christopher Haymon v. State Farm Mutual Automobile Insurance Company and Mrs. Melvin T. Cage. Allen Laiche, Christy Laiche, Individually and on Behalf of Marcus Laiche v. Louisiana Casino Cruises, Inc., the Estate of Melvin T. Cage, State Farm Mutual Automobile Insurance Company. Dana Simpson Manning, Individually and on Behalf of Her Minor Child, Ashley Manning v. State Farm Mutual Automobile Insurance Company, Mrs. Melvin T. Cage, Individually and as Heir to the Estate of Melvin T. Cage, Christopher A. Haymon, Patterson Insurance Company and Allstate Insurance Company.
    No. 2001 CA 2075, 2001 CA 2076, 2001 CA 2077, 2001 CA 2078.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Locke Meredith, Sean D. Fagan, Baton Rouge, for Appellants Plaintiffs Salah Sa-laiman, et al.
    Before: FOIL, FOGG and KLINE, JJ.

      . Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   JjlFOIL, j.

At issue in this appeal is whether La. R.S. 32:295, which requires that children under the age of thirteen be properly secured when riding in a vehicle, but which states that the failure to do so shall not “be admissible as evidence in the trial of any civil action with regard to negligence,” provides tort immunity in a suit based on the failure to properly secure a child in a vehicle. The trial court concluded that the statute provided immunity. We reverse.

BACKGROUND

On December 28, 1999, seven-year-old Demond Simpson was a passenger in a vehicle driven by Christopher Haymon. The vehicle was rear-ended by a vehicle driven by Melvin Cage. Demond Simpson died from injuries sustained in the collision. His parents, Salah Salaiman and Angela Simpson, filed -wrongful death and survival actions against a host of defendants, including Haymon and Patterson Insurance Company, which issued a liability policy covering the vehicle Haymon was driving. They alleged that Haymon was hable for failing to secure their son in a seat belt or safety harness and failing to take proper evasive action.

Defendants filed a motion to strike the claim based on the failure to adequately secure the child, asserting that the evidence was inadmissible under La. R.S. 32:295F. The trial court granted the motion to strike. Thereafter, the trial court granted defendants’ motion for summary judgment, dismissing plaintiffs’ remaining claims against Patterson and Haymon. This appeal, taken by plaintiffs, followed.

DISCUSSION

Louisiana Revised Statute 32:295 provides, in pertinent part:

LA. Every resident of this state who transports a child or children under the age of thirteen years in a motor vehicle which is equipped with safety belts at the time of manufacture or assembly, or is currently equipped with safety belts, shall have the child properly secured in accordance with the manufacturer’s instructions in an age-or size-appropriate passenger restraint system which meets the applicable federal motor vehicle safety standards in effect....
[B](2) The term “child restraint system” as used in this Section shall mean a lap belt, a shoulder harness, or an age- or size-appropriate child safety seat.
C. If such child is three to twelve years of age, securing the child in a lap belt or safety belt in a rear seat shall be sufficient to meet the requirements of this Section....
F. In no event shall failure to wear a child passenger safety seat system be considered as comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence, nor shall such failure be considered a moving violation.

Interpretation of statutes involves the search for the legislature’s intent. La. Civ.Code arts. 1 and 2. When a law is clear and unambiguous and does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. La. Civ.Code art. 9; Ruiz v. Oniate, 97-2412, p. 4 (La. 5/19/98), 713 So.2d 442, 444. When the language is susceptible of different meanings, however, it must be interpreted as having the meaning that best conforms to the purpose of the law. Id.

We look first to the language of the statute. The statute mandates the use of safety restraints for children in order to protect them from harm in an automobile collision. The statute protects children by precluding a tortfeasor from raising the fact that the child was not properly secured as a defense to recovery in the event that child is injured in an automobile collision. Paragraph F does this by precluding the introduction of evidence on restraint use in two ways. First, it precludes a defendant from raising the child’s failure to be restrained in a safety device as evidence of the child’s | .^comparative negligence. Secondly, it precludes the admission of evidence on the issue of negligence. We believe the legislature added this provision to prevent a defendant from raising the issue of someone else’s negligence (i.e., the parent) for failing to secure the child in a safety seat in order to reduce the child’s recovery.

At a minimum, for a court to construe paragraph F to provide tort immunity to a defendant for the defendant’s failure to properly secure a child in a safety seat, the legislative grant of such immunity would have to be express. There are numerous instances of express legislative grants of statutory immunity to individuals under certain circumstances contained in Title 9 of the Revised Statutes. In granting immunity from liability, the legislature has employed phrases such as “shall not be held liable for damages”, or “shall not be individually liable to any person.” See, e.g., La. R.S. 9:2800:10 (no person shall be liable for damages for injury, death, or loss sustained by a perpetrator of a felony offense during the commission of the offense or while fleeing the scene of the offense); La. R.S. 9:2792 (a director, trustee of any public, charitable or nonprofit hospital “shall not be individually liable to any person” that receives benefits from the hospital for any act or omission to act by any employee of the hospital); La. R.S. 9:2793 (no person who in good faith gratuitously renders emergency care “shall be hable for any civil damages” as a result of any act or omission in rendering the care or services).

Similarly, in extending statutory immunity, the legislature has also employed the phrase “[n]o person shall have a cause of action against.” See, e.g., La. R.S. 9:2793.1 (no person shall have a cause of action against a public entity for damage to property at the site of a crime). In other instances, the legislature has extended immunity from liability by mandating that no duty of care is owed by certain individuals under certain circumstances. See La. R.S. 9:2791 (an owner, lessee or occupant of | ^property used primarily for non-commercial recreational purposes owes no duty of care to keep such premises safe for entry or use by others).

On the other hand, paragraph F of La. R.S. 32:295 does not contain an express grant of statutory immunity shielding a defendant from damages caused by his failure to secure a child in a safety restraint device. Further, because the purpose of the law is to protect children, we are bound to read paragraph F in a way that will best accomplish that purpose. Therefore, we hold that paragraph F contains two evidentiary restrictions barring a defendant from introducing evidence that the child-victim was not in a child restraint device during a vehicular accident through the fault of the child or another as a means to reduce the child’s recovery. However, it does not immunize a defendant from liability arising from the defendant’s failure to properly secure a child in a vehicle.

For these reasons, we conclude that the trial court erred in granting the motion to strike and in rendering summary judgment to defendants. Accordingly, the judgment appealed from is reversed. This case is remanded to the trial court to conduct proceedings consistent with this opinion. All costs of this appeal are assessed to appellants.

REVERSED; REMANDED.

      . Plaintiffs initially filed a motion for an appeal after the motion to strike was granted. In this appeal, they do not contest the dismissal of their other negligence claims, only that claim which was the subject of the motion to strike. We shall address that interlocutory ruling in this appeal from the final judgment of the trial court.


author: J^FOIL, J.

text:
    Linda WALKER v. ACADIAN BUILDERS OF GONZALES, INC.
    No. 2001 CA 2534.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      James Maughan, Baton Rouge, for Second Appellant Plaintiff Linda Walker.
    Charles Davoli, Baton Rouge, for First Appellant Intervenor Cortanna Rene Beecham.
    Stephen Broyles, Baton Rouge, for Ap-pellee Defendant Acadian Builders of Gonzales, Inc.
    Before: FOIL, FOGG and KLINE, JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   J^FOIL, J.

This workers’ compensation case involves two separate claims for death benefits. Cortanna Rene Beecham (first appellant) and Linda Walker (second appellant) appeal from a judgment of the Louisiana Office of Workers’ Compensation in favor of Acadian Builders of Gonzales, Inc. The workers’ compensation judge, Anthony P. Palermo, denied both appellants’ claims for death benefits, finding that the decedent was not in the course and scope of his employment at the time of his death. For the reasons that follow, we affirm the judgment of the WCJ.

FACTS AND PROCEDURAL BACKGROUND

The decedent, Charles Walker, worked for Mary Fox Digging, a company that was under contract with Acadian Builders of Gonzales, Inc. to dig foundations for construction of new private residences in the Pelican Point golf course development. Their employer, Mrs. Fox, provided transportation to and from the work site to Mr. Walker and his co-employees. Near the end of the workday on June 13, 1997, the crew “knocked off’ early because of rain. While waiting for transportation home, Mr. Walker jumped in a nearby golf course pond and drowned.

Mr. Walker’s parents, Linda Walker and Charles Robinson, filed the initial lawsuit in this matter. Their suit, seeking workers’ compensation living ascendant death benefits, was filed against Acadian Builders as the statutory employer because Mary Fox Digging, the direct employer, was uninsured and failed to pay any benefits. The employer and its insurer filed a motion for summary judgment, which was granted. The WCJ determined that Mr. Walker’s employment did not include the risk that he might swim in a golf course pond adjacent to the job site. Therefore, the WCJ held that Mr. Walker was not in the course of his employment. On appeal, a five-person panel of this court found the existence of “material factual issues critical to the determination of the parameters of the course and scope of Mr. Walker’s work,” and reversed the granting of summary judgment. Walker v. Acadian Builders of Gonzales, Inc., 99-0297 (La.App. 1 Cir. 5/19/00), 797 So.2d 690, 694. In so ruling, this court noted as follows:

The trial court, in the instant case, did not grant the motion for summary judgment on the basis that the employee’s action constituted horseplay; nor was summary judgment granted on the basis that Mr. Walker was engaging in action that had been expressly prohibited. Rather, the court premised its decision on the basis that the act of swimming in an adjacent golf pond, immediately after completing manual labor and prior to departing, is not an activity that would be reasonably expected.

Id., 797 So.2d at 693. Accordingly, this court remanded the matter for further proceedings.

Prior to the’trial on remand, Cortanna Rene Beecham intervened as a third party plaintiff on behalf of the decedent’s alleged illegitimate minor son, Devante Noel Beec-ham. She sought dependent descendant benefits for the minor. On the day of trial, April 25, 2001, Linda Walker and Charles Robinson filed a peremptory exception alleging that Cortanna Beecham had no right or cause of action to claim death benefits on behalf of Devante Beecham, as he was never “formally” acknowledged by Charles Walker.

Following a trial of the matter and the submission of post-trial memorandums, the WCJ denied the claims of all plaintiffs, finding that the claimants failed to prove that Charles Walker was in the course and scope of his employment at the time of his death. These appeals by Cortanna Rene Beecham and Linda Walker followed.

On appeal, both appellants argue that the WCJ erred in ruling that Charles Walker’s death did not arise out of and in the course of his employment. They both contend that Mr. Walker drowned during a permissible “stand-by” period and that his death did not occur as a result of horseplay.

APPLICABLE LAW

A personal injury is compensable under the Workers’ Compensation Act only if it results from an accident “arising out of and in the course of employment.” La. R.S. 23:1031; Davis v. St. Tammany Parish School Board, 00-2860 (La.App. 1 Cir. 2/15/02), 808 So.2d 826, 828. The terms “arising out of’ and “in the course of’ in Section 1031 are dual requirements that cannot be considered in isolation from each other. Id., 808 So.2d at 828-829. To evaluate the “course of employment” requirement, the court focuses on whether the employee sustains an injury while actively engaged in the performance of his duties during working hours, either on the employer’s premises or at a place contemplated by employment activities. Id., 808 So.2d at 829. This inquiry focuses upon the time and place relationship between the injury and the employment. Id. When considering the “arising out of employment” requirement, the court inquires into the character or origin of the risk suffered by the employee and determines whether this risk was incidental to the employment. Id. An injury arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. Id. Finally, a WCJ’s determinations regarding these requirements are subject to the manifest error standard of review. Lewis v. Houma Industries, 01-0641 (La.App. 1 Cir. 5/10/02), 818 So.2d 956, 958.

DISCUSSION

To determine whether the WCJ was manifestly erroneous in granting judgment in favor of the employer, we examine the facts of this case in light of the applicable legal principles. With reference to the requirement that the injury occur in the “course of employment,” we note that Mr. Walker drowned at the end of a workday, at a place that was not contemplated by his employment activities. Moreover, Mr. Walker was not actively engaged in the performance of his duties (digging foundations) when the incident occurred. Based on these facts, the WCJ correctly concluded Davis was not in the course of his employment when the incident occurred.

With reference to the “arising out of employment” requirement, we note that the risk of an injury occurring as it did in this case was not incidental to Mr. Walker’s employment as a foundation digger. The WCJ |Rnoted that the incident occurred when Mr. Walker left the immediate job site, went to a pond, jumped in and was swimming around.' Mr. Walker was not digging a foundation, and the employer’s business did not require him to be at the place of the accident. In fact, and as the WCJ found, the evidence shows that Mr. Walker had been told by the supervisor of the digging crew, Bobby Ray Fox, not to go swimming in the pond. In oral reasons for judgment, the WCJ found that Mr. Walker was engaged in horseplay at the time of his death. His actions were not in furtherance of any work activity, but were “for his pure enjoyment.” We find that these conclusions are supported by the evidence. Indeed, the evidence shows that Mr. Walker violated instructions and that the prohibited act was so “substantially different” that it totally removed him from the scope of his employment. See Walker v. Acadian Builders of Gonzales, Inc., 797 So.2d at 693. There was testimony that some other people had been seen swimming in the pond before, but, as the WCJ noted, there was no evidence that Mr. Walker witnessed this or was told about it. No one else had been in the water or was in the water on the day that Mr. Walker drowned. After a thorough review of the evidence in this case, we conclude that the WCJ correctly found that the accident in this case did not arise out of Mr. Walker’s employment. Accordingly, we find that the WCJ was not manifestly erroneous in granting judgment in favor of Acadian Builders of Gonzales, Inc.

CONCLUSION

The judgment appealed from is affirmed. All costs of this appeal are assessed equally to both appellants.

AFFIRMED.


text:
    John H. GUIDRY, Jr. v. M-I DRILLING FLUIDS CO.
    No. 2001 CA 2693.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Danna E. Schwab, Houma, for Appellee Plaintiff John H. Guidry, Jr.
    Tobin J. Eason, New Orleans, for Appellant Defendant M-I Drilling Fluids Co.
    Before: FOIL, FOGG and KLINE, JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   J^FOIL, J.

An employer, M-I L.L.C., appeals a judgment awarding temporary total disability benefits to claimant, John Guidry, Jr., in this workers’ compensation case. The judgment further awarded medical expenses to claimant. For the reasons that follow, we affirm.

FACTS

This case involves a dispute over the entitlement of John Guidry to workers’ compensation benefits. Guidry, a ten-year employee of M-I, alleges that he had a mental breakdown and suffered from major depression following a demotion and sexual harassment allegations levied against him by his supervisor. Guidry was hospitalized for almost two weeks and was out of work for 19 weeks. He ultimately returned to work at M-I.

Following a hearing and the submission of post-trial memoranda, the workers’ compensation judge, Glynn F. Voisin, rendered judgment, finding that Guidry suffered a compensable, work-related injury. The WCJ further found that Guidry established by clear and convincing evidence that the demotion/allegations of sexual harassment rendered by Ron Domangue constituted a sudden, unexpected and extraordinary event. As such, the WCJ awarded Guidry temporary total disability benefits in the amount of $11,892.32, and medical expenses in the amount of $7,296.00, for a total of $19,188.32. This appeal by M-I followed.

DISCUSSION

On appeal, M-I claims that the WCJ committed manifest error in finding that Guidry proved by clear and convincing evidence that his depression was a result of work-related stress from a sudden, unexpected, and extraordinary event. It asserts that Guidry’s stress was not work-related, but stemmed from his daughter’s concerns regarding the sexual harassment allegations.

In workers’ compensation cases, as in other civil cases, the manifest error or clearly wrong standard governs the appellate court’s review of facts. Bass v. National Maintenance Corporation, 95-0367, p. 3 (La.App. 1 Cir. 12/15/95), 665 So.2d 782, 783. In order to reverse a factual finding of the WCJ, we must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

A review of the evidence presented in this case reveals that a reasonable factual basis exists for the WCJ’s findings on the issue of Guidry’s mental injury claim and that these findings are not clearly wrong. Accordingly, we are constrained to affirm these findings.

M-I also urges on appeal that Guidry received short-term disability benefits for three and one-half weeks at full pay for a forty-hour work week, and sixty percent of his weekly pay thereafter until his return to work. It argues that the benefits awarded should be reduced by the amount paid, $4,649.30, leaving a balance of $2,262.70, plus stipulated medical expenses.

In response, plaintiff correctly points out that his counsel did not stipulate at the beginning of trial that he was paid under an M-I-funded short-term disability plan. Plaintiff maintained that he paid for the plan and M-I introduced no evidence that payments were made from a plan funded by M-I. As such, we decline to disturb the amount awarded by the WCJ.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. Costs of this appeal are assessed to appellant, M-I L.L.C.

AFFIRMED.


author: J2.FOIL, J.

text:
    Bret A. FORNEA v. NORWELL EQUIPMENT COMPANY and American Interstate Insurance Company.
    No. 2001 CA 2791.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      John Lindner, II, Covington, for Appel-lee Plaintiff Bret A. Fornea.
    David Butler, Jr., Baton Rouge, for Appellants Defendants Norwell Equipment Company And American Interstate Insurance Company.
    Before: FOIL, FOGG and KLINE, JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   J2.FOIL, J.

This appeal challenges the award of workers’ compensation benefits. We affirm.

BACKGROUND

Bret Fornea was employed by Norwell Equipment Company as a mechanic. On June 1, 2000, while working for Norwell, Mr. Fornea had a work-related accident when he slipped on some mud outside the shop door. Mr. Fornea reported the incident to his supervisor, complaining of back pain, and was sent to Health South, where x-rays were taken. Several days later, he was referred to Dr. Randall Lea, an orthopedic surgeon. Complaining of back pain, Mr. Fornea related that he had done a “split” when he slipped at work. Dr. Lea observed tenderness in Mr. Fornea’s spine and joint, and initially believed that Mr. Fornea was suffering from a joint problem based on the account of the work accident. Dr. Lea recommended therapy, and later ordered a bone scan after Mr. Fornea continued to complain of pain in the left lower back.

Mr. Fornea attempted to return to work at Norwell, but could not perform his job as a mechanic and was terminated on July 7, 2000. American Interstate Insurance Company, Norwell’s compensation carrier, immediately began paying disability benefits.

On August 6, 2000, Mr. Fornea went to the emergency room of North Oaks hospital complaining of leg pain. Mr. Fornea and his wife testified that Mr. Fornea’s foot got caught while climbing stairs into their mobile home, causing him to fall. However, records of the visit state under the section for “chief complaint” that Mr. Fornea “wiped out” on a dirt bike and injured his ankle and right leg. Mr. For-nea denied having told anyone at the emergency room that he had been riding a motorcycle on that date. Rather, he explained, when questioned about a calcium deposit on his tailbone shown on the x-rays, he related that in 1991, he fell off a motorcycle and injured his tailbone.

| aX-rays taken at the emergency room revealed that Mr. Fornea had a broken leg. Mr. Fornea returned to Dr. Lea twelve days later, where he related the leg injury, telling Dr. Lea that he had fallen while climbing stairs. Dr. Lea again recommended therapy and was considering releasing him to work at the end of September.

On October 5, 2000, American terminated compensation benefits. On November 13, 2000, Mr. Fornea visited Dr. Lea, continuing to complain of back pain. Dr. Lea ordered an MRI, which revealed a disc bulge that was possibly impinging on a nerve root. Dr. Lea revised his diagnosis, stating that Mr. Fornea was not capable of going back to regular duty at Norwell in light of his spinal injury. Further, Dr. Lea stated that Mr. Fornea was a surgical candidate, and referred him to a neurosurgeon for an evaluation. Dr. Lea related that the neurosurgeon did recommend back surgery. According to Mr. Fornea, that surgery has never been performed because American refused to pay the costs.

After the presentation of the evidence, Workers’ Compensation Judge Robert Varnado ruled from the bench that the evidence established that Mr. Fornea injured his spine while working for Norwell. The WCJ found that Mr. Fornea was temporarily totally disabled from the date of the accident, through the hearing and beyond. He ordered American to pay all medically reasonable and necessary treatment relating to the work accident, but declined to award penalties and attorney’s fees, finding that the confusion surrounding the medical reports regarding the tail bone injury and the fall on the steps justified the suspension of benefits.

This appeal, taken by American and Norwell, followed.

DISCUSSION

Appellants first complain that the WCJ erred in failing to find that Mr. Fornea made false statements for the purpose of obtaining benefits. Specifically, they assert that the evidence established that Mr. Fornea fell off of a motorcycle on August 6, 2000, but did not report the motorcycle | incident to his treating physician or American, and therefore, he should be denied benefits under La. R.S. 23:1208.

In order to establish a claim that an employee has forfeited his benefits pursuant to Section 1208, the following requirements must be met; (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any payment or benefit. The issue of whether an employee forfeited his workers’ compensation benefits by willfully making false statements in order to obtain benefits is one of fact, which may not be reversed on appeal absent manifest error. Bibbins v. Sonny’s Pizza, Inc., 2001-1524, pp. 4-5 (La.App. 1 Cir. 6/21/02), 822 So.2d 79, 82. Thus, in order to overturn a factual determination of a WCJ, this court must find from the record that a reasonable factual basis does not exist for the finding and the record establishes that the finding is clearly wrong. Saucier v. Dynasty Transportation, Inc., 2001-0847, p. 4 (La.App. 1 Cir. 5/10/02), 818 So.2d 943, 945-46, unit denied, 02-1613 (La.9/30/02), 825 So.2d 1198.

Obviously, in rejecting the Section 1208 defense, the WCJ believed Mr. Fornea and his wife’s testimony regarding the fall from the steps, despite the confusion in the medical records. The WCJ simply made a credibility determination, and we cannot say that the WCJ was clearly wrong in failing to find that Mr. Fornea made a misrepresentation for the purpose of obtaining benefits.

Next, appellants contend that the WCJ erred in awarding continued benefits, asserting that Mr. Fornea failed to prove a causative link between his work accident and ongoing disability and medical treatment. They assert that the August 6th accident caused Mr. Fornea’s condition to deteriorate to the point that surgery was considered.

Determinations of disability and the length of disability are factual findings. Reviewing courts must afford great weight to the trier of fact’s disability determinations, which may not be disturbed in the absence of ^manifest error. Herrell v. Tempo Personnel, 633 So.2d 690, 692 (La.App. 1 Cir.1993), writ denied, 94-0236 (La 3/18/94), 635 So.2d 1101.

The record abundantly supports the WCJ’s finding that Mr. Fornea sustained a spinal injury at work, which rendered him temporarily totally disabled. Dr. Lea’s testimony established that Mr. Fornea complained of back pain from the time of the work injury and beyond. Dr. Lea initially suspected a joint injury and treated him based on that suspicion for some time. However, when Mr. Fornea’s condition did not improve, Dr. Lea ordered the MRI, which revealed the spinal injury. Furthermore, as noted earlier, the WCJ did not believe that Mr. Fornea injured himself in a subsequent motorcycle accident. Appellants simply failed to establish another causative explanation for Mr. For-nea’s back injury, and thus have not provided a basis upon which to reverse the WCJ’s disability determination.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED.


author: FOGG, J.

text:
    NOTOCO INDUSTRIES, INC. v. Rodney B. POWELL a/k/a Rocky Powell.
    No. 2001 CA 1817.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Donnie L. Floyd, Prairieville, for Plaintiff — Appellee Notoco Industries, Inc.
    Ernest E. Hartenstine, Denham Springs, for Defendant — -Appellant Rodney B. Powell, a/k/a Rocky Powell.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   FOGG, J.

The salient issue raised on appeal in this contract case is whether a trailer is an immovable or a movable. The trial court found the trailer was a movable. For the following reasons, we affirm.

Rodney Powell worked for Notoco Industries, Inc. from approximately 1980 until 1995. His duties included entertaining clients of Notoco by taking them fishing near Chauvin, Louisiana. To facilitate this entertainment, Notoco purchased a boat and paid for the use of a camp.

In 1988, Terry Lapeyrouse asked Mr. Powell if he would be interested in purchasing a trailer and leasing a campsite that was owned by his company, Robinson Canal Land Co., Ltd. In 1988, Mr. Powell purchased the trailer and entered into a six year lease of the campsite in his own name. Notoco paid the lease payments, utility bills, and insurance premiums, as well as, the costs for the materials and labor for improvements to the trailer. Charles Noto, owner and president of No-toco, testified that Notoco and Mr. Powell agreed that each would own fifty percent of the trailer.

In 1994, Mr. Powell entered into another six year lease with Robinson Canal Land Co. for the campsite. In 1995, Mr. Powell left the employ of Notoco, and the ownership of the trailer became a contested issue. In 1998, Notoco discovered that Rodney and Kimberly Powell had subleased the premises to a third party, who demolished portions of the trailer. On October 8, 1998, Notoco filed suit, seeking to be declared lessee of the premises or, in the alternative, to be awarded a money judgment for monies expended by it for improvements, lease payments, and sublease payments. On March 25, 1999, Rodney and Kimberly Powell executed an Act of Cash Sale to Henrietta Marie Smith Hunt for the sale of the trailer for $60,000. No-toco amended their petition on April 26, 1999 to seek to be declared co-owner of the trailer and be awarded a money judgment in the sum of $30,000.

liiThe trial was scheduled initially for January 25, 2000 and was continued at the request of the defendants. It was reset for June 21, 2000. On the day of trial, Mr. Powell appeared in court without representation and requested . a continuance, which the trial court denied. After trial on the merits, the trial judge rendered judgment in favor of Notoco and against Rodney and Kimberly Powell in the sum of $30,000. The defendants filed a motion for new trial, which was also denied by the trial court. The Powells appeal.

Initially, the appellants claim the trial court erred in refusing to grant them a continuance. LSA-C.C.P. art 1601 provides for a continuance “if there is good ground therefor.” The trial court has great discretion in granting or denying a continuance under LSA-C.C.P. art. 1601, and its ruling should not be disturbed on appeal in the absence of a clear abuse of discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974). Among the factors the trial court will consider when deciding a motion for continuance are diligence, good faith, and reasonable grounds. Coffman v. Mainhardt, 602 So.2d 264 (La.App. 2 Cir. 1992).

According to the Powells, approximately thirty days prior to trial, their attorney informed them that he was withdrawing from the case. There is nothing in the record that indicates that the Powells attempted to contact opposing counsel to discuss a continuance. However, they did discuss representation with several attorneys. One required a $5,000 retainer, and the Powells did not employ him. Rather, they continued to look for a lawyer.

At trial, Mr. Powell requested a continuance. The court asked Mr. Powell if he would be willing to pay all of the costs Notoco incurred in preparing for trial on that date. Mr. Powell replied, “Uh, yes, sir.” However, when the Powells provided neither the verified funds or the cash to pay Notoco’s expenses, the trial court denied the continuance.

| Considering the above, it is clear that the Powells failed to demonstrate that they acted diligently in attempting to obtain representation. Therefore, the trial court did not abuse its discretion in requiring the Powells to proceed.

The Powells also assert that the trial court erred in refusing to grant a new trial, as the motion for a continuance was improperly denied. Generally, the trial judge should grant a new trial when the trial court, in the exercise of discretion, is convinced by its examination of the facts that the judgment would result in a miscarriage of justice. Northshore Ins. Agency, Inc. v. Farris, 634 So.2d 867 (La.App. 1 Cir.1993). The trial court has much discretion in determining whether to grant a motion for new trial. LSA-C.C.P. art. 1971; Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094.

Finding, as we have above, that the trial court did not err in denying the Powells’ motion for a continuance, and considering the testimony that was obtained during the hearing on the motion for a new trial, we find the trial court did not abuse its discretion in denying their motion for a new trial.

Finally, the appellants assert that the trial court erred in finding that Notoco had an ownership interest in the trailer, asserting the trailer is an immovable and Notoco does not have title to it. We find no merit to this assertion. In LSA-R.S. 9:1149.4, the legislature set forth the actions necessary for a mobile home to be-, come an immovable. Herein, these requirements were not complied with. Therefore, this trailer did not become an immovable. This case is distinguishable from the case of Ellis v. Dillon, 345 So .2d 1241 (La.App. 1 Cir.1977), as that case concerned the determination of whether a mobile home is an immovable for purposes of qualification for a homestead exemption. The present case deals with the enforceability of an oral contract under which the parties are co-owners of a trailer.

1 ¡/For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Rodney and Kimberly Powell.

AFFIRMED.


author: RFOGG, J.

text:
    Emanuel JOHNSON, Jr. v. TOWN OF INDEPENDENCE.
    No. 2001 CA 2664.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Cassandra Butler, Independence, for Plaintiff — Appellant Emanuel Johnson, Jr.
    Lance L. Engolia, Covington, for Defendant — Appellee.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   RFOGG, J.

The salient issue raised on appeal in this case is whether the Town of Independence had the authority to hold a property owner responsible for the delinquent water bill of a tenant. Finding it did not, we reverse the judgment of the trial court.

By letter dated November 2, 2000, May- or Phillip F. Domiano of the Town of Independence informed Emanuel Johnson that, in a regular meeting on August 11, 1992, the Board of Aldermen voted to make all landlords responsible for their tenants’ water bills. The letter further stated:

Because of this ordinance, you are responsible and are expected to pay the water bills for your apartments. A check of our records indicates that you owe the following amounts:
Location Amount owed
185 Highway 40 West $ 730.55
191 Highway 40 West 404.37
113 Johnson Lane 262.33
117 Johnson Lane 164.27
209 Oak Street 296.10
TOTAL $1,857.62
You have until November 20, 2000, to bring these accounts up to date or the water services will be disconnected and legal action will be taken. Once water services are terminated, they will not be reconnected until accounts are brought up to date. As of November 20, all accounts will be billed to you directly, as you are the landlord of the rental properties.

On November 20, 2000, Johnson filed a suit, contesting the enforceability of the ordinance. After hearing the matter, the trial court rendered judgment in favor of the Town of Independence. Johnson appeals.

The actions of a town fall into two categories, resolutions and ordinances. The process of passing an ordinance is set forth in LSA-R.S. 33:406, which provides, in pertinent part:

|aB. (1) A proposed ordinance may be introduced by any alderman at any board meeting. Each proposed ordinance shall be in writing. An ordinance shall contain only one subject which shall be indicated in its title except for ordinances involving the annual operating budget, a capital improvements budget, or a codification of municipal ordinances.
(2) After a proposed ordinance has been introduced, copies of it shall be provided to all members of the board and the mayor. The title of a proposed ordinance, except those specifically authorized by R.S. 33:405(D), shall be published once in the municipality’s official journal. The notice shall indicate the time and place where the board will consider its adoption. No ordinance, except one authorized by R.S. 33:405(D), shall be adopted until a public hearing on it has been held. No ordinance, except one authorized by R.S. 33:405(D), can be adopted at the meeting at which it is introduced.

The matter was introduced at the August 11, 1992 meeting of the Board of Aldermen. It was listed on the agenda under the category of “New Business” and passed by unanimous vote. However, an ordinance cannot be adopted at the meeting at which it is introduced as the publication and notice requirements have not been met. Any act of the board that is not an ordinance is a resolution. LSA-R.S. 33:406(A)(2). As conceded by the Town of Independence, the Board’s action of August 11, 1992 constituted the passing of a resolution. A resolution cannot support the action of the Town of Independence.

For the foregoing reasons, the judgment of the trial court is reversed, and judgment is hereby rendered in favor of appellant, granting the appellant’s preliminary writ of injunction, restraining and enjoining the Town of Independence from cutting off the water supply to the appellant’s property because of the nonpayment of the delinquent water bills outstanding in the names of his prior |4tenants. Costs in the sum of $975.50 are assessed against the Town of Independence.

REVERSED.

      . Pursuant to LSA-R.S. 33:406(A)(2):
      (2) Any act of the board which is not law shall be by resolution. A resolution shall be approved by an affirmative vote of a majority of the members of the board present at a meeting. No resolution shall require the signature or other action of the mayor to become effective.

      . The Town of Independence asserts that the substance of the resolution became an ordinance on June 12, 2001; however, that action by the Board of Aldermen is not before us in this case.


author: LFOGG, J.

text:
    Jerome AUGUST v. MAX FOOTE CONSTRUCTION CO., INC.
    No. 2001 CA 2757.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Patricia McKay Clotiaux, Metairie, for Defendant — Appellee Max Foote Construction Company, Inc.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   LFOGG, J.

In this workers’ compensation case, the issue of causation is raised on appeal. For the following reasons, we affirm.

On June 6, 2000, Jerome August fell while in the course and scope of his employment with Max Foote Construction Company, Inc. He filed a disputed claim form, seeking workers’ compensation benefits. After a trial, the workers’ compensation judge dismissed the claim, finding the claimant failed to prove a “causal connection between the ongoing medical condition complained of and the alleged accident occurring June 6, 2000.” The claimant appeals.

To recover workers’ compensation benefits, a claimant must establish by a preponderance of the evidence a causal link between the work-related accident and the claimed disability. Clausen v. D.A.G.G. Constr., 2001-0077 (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Clausen, 807 So.2d at 1201.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. An appellate court cannot set aside the factual findings of a workers’ compensation judge unless there is no reasonable basis for those findings or they are clearly wrong. When factual findings are based on witness credibility, the appellate court must give great deference to the fact-finder’s decision to credit or discredit a witness’s testimony. When there is a conflict in the testimony, reasonable credibility evaluations and inferences of fact should not be disturbed on review, even if the appellate court feels that its own evaluations and inferences are as reasonable. See Clausen, 807 So.2d at 1202.

The claimant, a cement finisher by trade, traveled to Mississippi and reported to work the morning of June 6, 2000. While smoothing a wall, he fell over a five-_jgallon3 bucket. The accident was reported, and the claimant continued to work. After his shift, the claimant received over-the-counter pain medication from his supervisor. The claimant never returned to work. The day following the fall, the claimant stayed in bed until 2:00 p.m., then he returned to Louisiana. The claimant testified he did not ask his supervisor for medical treatment. Frank Evans, a superintendent at the jobsite, stated that when questioned immediately after the fall, the claimant complained of soreness but denied an offer of medical treatment.

On July 12, 2000, Dr. Raul Reyes’ diagnosis of the claimant included cervical and lumbosacral spine sprain. Dr. Reyes continued conservative treatment for six months. In 1991, Dr. Reyes had treated the claimant for approximately one year for neck and back pain after a motor vehicle accident. During treatment by Dr. Reyes, the claimant provided medical histories that included a motor vehicle accident resulting in back injuries in 1986 and additional treatment by another physician following a motor vehicle accident in 1994.

The claimant’s medical records establish he received medical treatment in 1998 after he reportedly was struck by a vehicle, in 1996 after he jumped from a vehicle, and in 1983 after a fall. In addition, Dr. Nicolas Cefalu treated the claimant in 1996 for back pain. An MRI preformed on February 6, 2001, revealed mild disc degeneration at C5-C6 and moderate disc degeneration at C6-C7, attributed to chronic degenerative disc disease.

The record supports the workers’ compensation judge’s finding that the claimant failed to prove by a preponderance of the evidence that his injuries were caused by his June 6, 2000 fall. Further, we cannot say that the workers’ compensation judge was clearly wrong.

Accordingly, the judgment of the workers’ compensations judge is affirmed. Costs are assigned to Jerome August.

AFFIRMED.


author: J^FOGG, J.

text:
    Bobby JACKSON, Sr. v. ST. HELENA PARISH SHERIFF’S DEPARTMENT and Ronald Ficklin, Sheriff St. Helena Parish.
    No. 2001 CA 2792.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      J. David Smith, Baton Rouge, for Plaintiff-Appellant Bobby Jackson, Sr.
    Freeman R. Matthews, Craig E. Frosch, New Orleans, for Defendant — Appellee St. Helena Parish Sheriff Ronald Ficklin.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^FOGG, J.

The salient issue raised on appeal in this action for workers’ compensation benefits is whether a jailer is precluded from receiving such benefits pursuant to LSA-R.S. 23:1034. For the following reasons, we affirm.

Bobby Jackson, Sr., was employed as a jailer by the St. Helena Parish Sheriffs Department when he was injured during a training exercise. On January 10, 2001, Jackson filed a disputed claim for compensation with the Louisiana Office of Workers’ Compensation.

Ronald Ficklin, the Sheriff of St. Helena Parish, responded by filing a peremptory exception raising the objection of no right of action, claiming that, because Jackson was an appointed deputy sheriff at the time of the accident, he is ineligible for workers’ compensation benefits pursuant to LSA-R.S. 23:1034(A). The workers’ compensation judge sustained the exception of no right of action. Jackson appeals.

The peremptory exception pleading the objection of no right of action questions whether a plaintiff falls within the particular class to which the law grants a remedy for the particular harm alleged. LSA-C.C.P. art. 927(A)(5); Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00), 808 So.2d 363, writ denied, 2001-2546 (La.12/7/01), 803 So.2d 971. Whether a plaintiff has a right of action is a question of law; therefore, it is reviewed de novo on appeal. Horrell, 808 So.2d at 368. To prevail, the defendant must demonstrate that the plaintiff does not possess an interest in the subject matter of the suit or legal capacity to proceed with the suit. Talbot v. C & C Millworks, Inc., 97-1489 (La.App. 1 Cir. 6/29/98), 715 So.2d 153.

LSA-R.S. 23:1034 provides, in pertinent part:

A.The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property 13and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.
B. Except as expressly and specifically provided to the contrary in Subsection A hereof, the officials excepted from coverage under the provisions of this Chapter, in Subsection A of this Section, include all public officers as defined by R.S. 42:1. In this regard, sheriffs’ deputies are, under R.S. 42:1, 33:1433, and 33:9001 et seq., appointed public officers and officials of their respective political subdivisions, the parish law enforcement districts.
C. Notwithstanding the provisions of Subsection A of this Section, any political subdivision may, in its own discretion and by using its own funds available for same, provide workers’ compensation coverage for its officials, in addition to having to provide such coverage for its employees. When a political subdivision elects to provide workers’ compensation for its officials, the provisions of R.S. 23:1032 regarding exclusiveness of remedies and employer’s liability shall apply to any injury, illness, or disease compen-sable under this Chapter.

Pursuant to this legislation, because sheriffs deputies are defined as appointed public officers of their parish law enforcement districts, they are excluded from workers’ compensation coverage. Kaufman v. City of New Orleans, 98-443 (La.App. 5 Cir. 10/28/98), 720 So.2d 835, writ denied, 98-3169 (La.2/12/99), 738 So.2d 576.

Jackson avers that he falls outside this statutory exception as he is a jailer rather than a deputy sheriff. We disagree. Pursuant to LSA-R.S. 33:1435, the sheriff is charged with the legal duty to be the keeper of the parish jail. Jailers are recognized as a category of deputy sheriffs in LSA-R.S. 33:1432.1 and LSA-R.S. |440:2402. Furthermore, this court has determined that a crossing guard is a deputy sheriff, and therefore excluded from workers’ compensation benefits. Smith v. St. Tammany Sheriff’s Office, 95-0960 (La.App. 1 Cir. 2/23//96), 668 So.2d 1331, writ denied, 96-0761 (La.5/3/96), 672 So.2d 694. See also Lewis v. Jefferson Parish Sheriff’s Office, 01-257 (La.App. 5 Cir. 9/25/01), 798 So.2d 249, (wherein the court found that a cook in the Jefferson Parish Correctional Center was not entitled to workers’ compensation payments for her injury); Kaufman v. City of New Orleans, 98-443 (La.App. 5 Cir. 10/28/98), 720 So.2d 835, writ denied, 98-3169 (La.2/12/99), 738 So.2d 576, (wherein the court found that a deputy sheriff working a security detail at the New Orleans International Airport was exempt from receiving workers’ compensation benefits).

Considering the above, we conclude that Bobby Jackson, Sr. was employed as a deputy sheriff with the St. Helena Parish Sheriffs Office and, therefore, does not fall within the general category of persons to whom the law affords the remedy of workers’ compensation. Therefore, the judgment of the workers’ compensation judge sustaining the objection of no right of action is correct.

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge. Costs are assessed against Bobby Jackson, Sr.

AFFIRMED.


author: J^FOGG, J. LKLINE, Judge,

text:
    Charles R. TRIGG and Penny Potts Trigg v. PENNINGTON OIL COMPANY, INC. and C.B. Pennington, Individually and as President and Owner of Pennington Oil Company, Inc.
    No. 2001 CA 2822.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      J. Arthur Smith, III, Fred G. Benton, Jr., Baton Rouge, for Plaintiffs — Appellants Charles R. Trigg and Penny Potts Trigg.
    Charles S. McCowan, Jr., Bradley C. Myers, Lana D. Crump, for Defendants— Appellees Pennington Oil Company, Inc. and Claude B. Pennington, III, In His Capacity As Executor For The Succession of Claude B. Pennington, Sr.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^FOGG, J.

In this contract action, the plaintiffs appeal the trial court’s grant of summary judgment in favor of the defendant and the dismissal of their lawsuit. For the following reasons, we affirm.

On April 17, 1991, Charles R. Trigg and his wife, Penny Potts Trigg, filed this contract action, naming as defendants C.B. Pennington, individually and as chief executive officer of Pennington Oil, and Pennington Oil, and seeking to recover retirement benefits allegedly due Mr. Trigg under a contract of employment he had with Pennington Oil.

Pennington Oil responded by filing a motion for summary judgment, which was denied by the trial court. The defendants filed applications for supervisory writs with this court as well as the Louisiana Supreme Court; both were denied without comment. In 1992, defendants filed a second motion for summary judgment, which was also denied by the trial court.

On June 13, 2001, the defendants filed a third motion for summary judgment. On October 2, 2001, the trial court rendered judgment, granting the defendants’ motion for summary judgment and dismissing the plaintiffs’ lawsuit with prejudice. The Triggs appeal.

Initially, we reject the Triggs’ assertion that the law of the case doctrine precluded the trial court from adjudicating the merits of the defendants’ third motion for summary judgment. In Melton v. Mi- ley, 98-1437 (La.App. 1 Cir. 9/24/99), 754 So.2d 1088, this court held that a trial court can rehear a motion for summary judgment after previously denying the motion. Also, in the cases of Francioni v. Rault, 570 So.2d 36 (La.App. 4 Cir.1990), writ denied, 575 So.2d 371 (La.1991) and Efferson v. Link Belt Corp., 476 So.2d 528 (La.App. 1 Cir.1985), the courts found it was not error for a trial court to consider a re-urged motion for summary judgment. See also Young v. Dupre Transport Co., 97-0591 (La.App. 4 Cir.10/1/97), 700 So.2d 1156; Metz v. Nichols Constr. Corp., 615 So.2d 967 (La.App. 1 Cir.1993). Accordingly, we find no error in the trial court’s consideration of the defendants’ third motion for summary judgment.

The appellants also assert that the trial court erred in granting summary judgment as genuine issues of material fact remain. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. LSA-C.C.P. art. 966(B).

It is undisputed that, in the summer of 1982, C.B. Pennington, the Chief Executive Officer of Pennington Oil, offered Mr. Trigg employment at a salary of $36,000 per year, with two weeks of vacation the first year, a health insurance policy, a life insurance policy of $25,000, and although none was in place at the time, a retirement plan in the near future. It is also undisputed that Mr. Trigg was an at-will employee, employed under an oral contract for no specific term.

The retirement plan was never implemented. According to Mr. Trigg, each time he asked about the plan, Mr. Pennington answered, “We still haven’t made a decision on it.” Mr. Trigg’s employment with Pennington Oil ended on April 18, 1990. By deposition, several other employees of Pennington Oil testified that Pennington Oil did not have a retirement plan in effect when they were hired or during the time they were employed by Pennington Oil.

Lin support of their assertion that there exist genuine issues of material fact, the Triggs refer to the deposition testimonies of other employees of Pennington Oil wherein they stated that they, too, were promised retirement benefits as part of their employment benefits package and that statements made by C.B. Pennington in his video deposition were untrue.

A “fact” is “material” if its existence or nonexistence may be essential to a party’s cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577 (La.1989). Although the factual content of the depositions is inconsistent, the inconsistencies are not as to material facts; therefore, they do not preclude summary judgment.

Finally, the Triggs assert that the defendants are not entitled to judgment as matter of law. We disagree. In Wall v. Tulane Univ., 499 So.2d 375 (La.App. 4 Cir.1986), writ denied, 500 So.2d 427 (La.1987), the court affirmed a summary judgment dismissing the claim of a university employee who asserted he had foregone more lucrative employment relying on the tuition waiver benefits described in the Tulane Staff Handbook. The court held that, because the employee was at-will, and the university made no promises as to the duration of the tuition waiver program, Tulane was free to terminate his employment or modify the benefits of that employment at any time. Wall, 499 So.2d at 376. The court stated that the employee’s subjective expectation that the tuition waiver program would not change was “not sufficient to raise a genuine issue of material fact.” Wall, 499 So.2d at 375.

We find the facts of this case similar to those of the Wall case. Mr. Trigg was an at-will employee; he admits that he was never promised a specific type of retirement plan. As comptroller of the company; he knew there was no retirement plan in place when he started with the company or any time during his tenure with Rthe company. Consequently, Pennington Oil was free to modify the terms of his employment at any time.

Therefore, the defendants successfully carried their burden of proving that no genuine issues of material fact exist and that they are entitled to judgment as a matter of law. The trial court correctly granted the motion for summary judgment.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against the appellants, Charles R. Trigg and Penny Potts Trigg.

AFFIRMED.

KLINE, J., dissents with reasons.

LKLINE, Judge,

dissenting.

I respectfully dissent in part with the majority report. I agree that the trial court is not precluded from rehearing the motion for summary judgment, however, I disagree with the trial court’s grant of defendant’s motion for summary judgment. The two prior rulings to deny were correct. The majority reasons that although the factual representations in the depositions are inconsistent, they are not so as to material facts and that the “at-will” employee was without a legal remedy because of his status.

The majority appropriately recites and the record supports the following:

It is undisputed that, in the summer of 1982, C.B. Pennington, the Chief Executive Officer of Pennington Oil, offered Mr. Trigg employment at a salary of $36,000 per year, with two weeks of vacation the first year, a health insurance policy, a life insurance policy of $25,000, and although none was in place at the time, a retirement plan in the near future. It is also undisputed that Mr. Trigg was an at-will employee, employed under an oral contract for no specific term.
The retirement plan was never implemented. According to Mr. Trigg, each time he asked about the plan, Mr. Pennington answered, “We still haven’t made a decision on it.” Mr. Trigg’s employment , with Pennington Oil ended on April 18,1990.

There was an inducement by the employer for the employee to initially accept employment and a recurring representation by the employer during the period of employment that the promised retirement plan was still a viable concept. It appears that for plaintiffs eight years of work life in the employ of the defendant that he, with others, had a reasonable expectancy that the promise of | ^retirement benefits would be kept. Reliance thereon was contemplated and reasonable.

Although the ease of Knecht v. Board of Trustees for State Colleges and Universities and Northwestern State University, 591 So.2d 690 (La.1991), may be factually different, the principle of law expressed is appropriate:

Nearly every state has determined, using precepts similar to our civilian principles, that when an employer promises a benefit to employees, and employees accept by their actions in meeting the conditions, the result is not a mere gratuity of illusory promise but a vested right in the employee to the promised benefit. See, e.g., T.L. James & Co. v. Montgomery, 332 So.2d 834 (La.1976); Hoffman-La-Roche v. Hugh Campbell, 512 So.2d 725 (Ala.1987); Gesina v. General Electric Corp., 162 Ariz. 35, 780 P.2d 1376 (Ct.App.1989); Sterling Drug Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988); Libby v. Calais Regional Hospital, 554 A.2d 1181 (Me.1989); Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880, 893 (1980); Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983); Gilman v. County of Cheshire, 126 N.H. 445, 493 A.2d 485 (1985); Cantor v. Berkshire Life Insurance Co., 171 Ohio St. 405, 171 N.E.2d 518 (1960); Bellomini v. State Employees’ Retirement Board of Pa., 498 Pa. 204, 445 A.2d 737 (1982); Textile Workers Union of America, Local # 513 v. Brookside Mills, 203 Tenn. 71, 309 S.W.2d 371 (1957); Ferraro v. Hyatt Corp., 124 Wis.2d 154, 368 N.W.2d 666 (1985). Courts have applied this rule to the governmental employer in the same manner that it applies to the private employer, rejecting the argument that a governmental employer bestows benefits on its employees subject to the employer’s whim. Gilman, supra; Bellomini, supra.

Admittedly the plaintiff was an at-will employee, but it was the will of the employer to engage and continue his service for almost a decade.

If this at-will employee, because of his status as such, has no remedy in spite of his good faith reliance on the offer and promises of his employer, then the extensive labor force of the State of Louisiana in the same status are at peril and can find no relief under our laws for unfulfilled promises and representations.

Defendant’s argument is acknowledged that had a plan of retirement been implemented, the defendant could change it at his whim so as to make it meaningless. This may be so, but “the carrot on the stick” continued to be dangled in front of the plaintiff and others to perhaps induce continued performance. The whim to diminish is conjectural when no plan was implemented.

J¿ would afford this plaintiff the opportunity to endeavor to convince the trier of fact that he relied on the employer to his detriment. When there is an uncertain time for performance, the obligation must be performed within a reasonable time.

Also, admittedly there was no detailed or specific plan promised, and defendants rely upon this lack of detail to show not only that there is no enforceable promise and no offer — acceptance contract, but even if there were such rights created, then there is no way that the trier of fact could measure the damage. The custom of similar industries and experience factors with retirement plans may be offered as relevant to the trier of fact. The harm is not insusceptible of a reasonable measure.

In essence, it is my opinion that the fact that plaintiff was an at-will employee does not in itself afford the employer immunity for his inducements, promises, and offers that could be reasonably in good faith relied upon by plaintiff.

I would find that these are material issues of fact relative to genuine legal issues.

      . Subsequently, Claude B. Pennington, in his capacity as executor for the Succession of C.B. Pennington, was substituted as a defendant.

      .The plaintiffs initially alleged additional causes of action; however, those were dismissed by the trial court and are not at issue in this appeal.

      . Louisiana Civil Code Article 1967 provides:
      Cause is the reason why a party obligates himself.
      A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

      . Louisiana Civil Code Article 1778 provides:
      A term for the performance of an obligation is a period of time either certain or uncertain. It is certain when it is fixed. It is uncertain when it is not fixed but is determinable either by the intent of the parties or by the occurrence of a future and certain event.. It is also uncertain when it is not determinable, in which case the obligation must be performed within a reasonable time.