author: |,LANIER, J.

text:
    Reuben O. BERRY, Jr. v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 2001 CA 2186, 2001 CA 2187.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Floyd J. Falcon, Jr., Baton Rouge, Counsel for Plaintiff/Appellant Reuben O. Berry, Jr.
    Michele G. Nuschler, Stephen A. Quidd, Baton Rouge, Counsel for Defendant/Ap-pellee Dept, of Public Safety & Corrections, Office of State Police.
    Before: KUHN, DOWNING, and LANIER, JJ.

      . The Hon. Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   |,LANIER, J.

In these consolidated cases, Reuben O. Berry, Jr. appeals a decision rendered by the State Police Commission (Commission) upholding his demotion by the Department of Public Safety and Corrections, Office of State Police (SP). Berry also appeals the Commission’s decision finding it lacked jurisdiction to entertain his appeal of an annual performance rating.

FACTS AND PROCEDURAL HISTORY

Berry had been employed by the SP for approximately 21 years and was serving in permanent status as a Sergeant. In a letter dated August 14, 2000, issued by SP Superintendent, Col. Terry Landry, Berry was advised that he was demoted to the rank of Master Trooper effective September 3, 2000, for violating various SP Procedural Orders. Specifically, the demotion letter charged that on Sunday, December 12, 1999, Berry worked an off-duty traffic detail for Entergy with then Lt. Etland, the Executive Officer at Troop B. Etland required everyone working the detail to complete two copies of the off-duty detail slip (DPSSP 4107). One copy was given to Entergy as a receipt. The other copy was to be retained by the trooper until he received his check from Entergy. Once the trooper received his check, he was to turn in his detail slip along with a copy of the check to Etland who would forward the information to the SP payroll department. Etland discovered that Berry never turned in his detail slip or a copy of the check from Entergy. This caused Etland to check his records to see if Berry had submitted the appropriate paperwork for prior off-duty details he had worked. Et-land discovered Berry had failed to submit paperwork for off-duty traffic details he worked in 1998 and 1999.

A subsequent Internal Affairs investigation revealed Berry had failed to submit the paperwork for the seventeen (17) off-duty traffic details he worked in 1999 and the thirteen (13) off-duty traffic details he worked in 1998. The demotion letter further alleged Berry acknowledged to the Internal Affairs investigators that he understood procedure required him to turn in this paperwork and admitted his failure to do so was a violation of SP policy and procedure. Specifically, the letter asserted that Berry’s |3failure to turn in the required paperwork was a direct violation of SP Procedural Order 306, Section VI, Subsection F which provides:

VI. SPECIAL EVENTS/OFF-DUTY DETAILS

F. “Payments for officers are to be recorded on DPSSP 4107(Off-Duty Detail Receipt) and processed in the same manner as off-duty escort checks.”

The procedure for reporting off-duty escort checks in Procedural Order 306 required officers to complete a DPSSP 4106 form to turn in along with a copy of the check the officer received at the earliest opportunity.

The demotion letter continued by stating Berry’s failure to submit these detail slips resulted in monies not being included on W-2 forms for his off-duty detail work in 1998 and 1999. As a result, investigators sought to verify whether Berry had claimed the off-duty wages on his federal and state income taxes for the corresponding years. Although Berry had not yet filed his 1999 returns, it was discovered he had not claimed' the additional wages on his 1998 tax returns. The letter informed Berry the omission of these wages on his 1998 federal tax return was a direct violation of Title 26 U.S.C. § 6011, Subpart A. As such, it was also a direct violation of SP Procedural Order 201, Section I, Subsection B, Paragraph 1(a) that states, in pertinent part:

B. The Rules
1. Conformance to Laws
a. A commissioned officer shall conform to, and abide by, the laws of the United States, the State of Louisiana, all other states of the United States and subdivisions thereof.

The letter further charged that during the investigation it was discovered Berry was licensed to sell real estate and, in 1997, he earned $1,345 from his real estate work. However, Berry did not file an application for approval for his secondary employment; and, thus, was in direct violation of SP Procedural Order 202, Section IV, Subsection A, which provides:

IV. Regulations Governing Secondary Employment
A. No employee shall hold a secondary job or position without the express written approval of the Superintendent and in the manner prescribed herein.

The demotion letter noted that, as a supervisor, Sergeant Berry had been charged with ensuring his subordinates knew and followed the established policies and procedures. The letter concluded that, although he had been aware of the established | ¿procedures, Berry had intentionally and repeatedly failed to follow them; and, therefore, set a poor example for his subordinates and, thus, was not fit to serve as a supervisor.

On August 30, 2000, Berry filed an appeal of his demotion with the Commission in which he denied the allegations against him and challenged the severity of the discipline imposed. Berry averred there was no impairment to the efficiency of the public service and no cause to warrant discipline. He argued that Procedural Order 306, at the time of his demotion, was substantially different from Procedural Order 306 that was in effect during 1998 and 1999. He further averred he did not intend to violate the Internal Revenue Code and his failure to get approval for secondary employment was merely inadvertent.

Subsequently, on October 5, 2000, Berry was given his regular annual “Performance Planning and Review” rating for the period of November 5, 1999 to Sept. 3, 2000 (the last day in his position as sergeant.) Based. largely on the same reasons given for his demotion, Berry was given a “poor” rating. Berry contested his rating and sought review. A re-rating was conducted on December 15, 2000, and Berry’s rating was upgraded from “poor” to “needs improvement.” Berry again sought review by the appointing authority who held the “needs improvement” rating was appropriate. On April 2, 2001, Berry filed an appeal of his “needs improvement” performance rating with the Commission that was subsequently consolidated with the appeal of his demotion.

In an Order to Show Cause dated April 16, 2001, the Commission questioned whether Berry’s appeal of his performance rating was within its jurisdiction. Soon thereafter, the SP filed a motion for summary disposition alleging the Commission lacked jurisdiction over the rating appeal.

Prior to the hearing, the parties stipulated, in writing, to the following pertinent facts:

1. Berry worked seventeen (17) off-duty traffic details in 1999. Berry did not submit detail slips, DPSSP Form 4107, with copies of the checks he received as payment for these seventeen (17) details to the Department.
2.Berry worked thirteen (13) off-duty traffic details in 1998. Berry did not submit detail slips, DPSSP Form 4107, with copies of the checks he received as payment for these thirteen (13) details to the Department.
| cj3. The thirteen (13) off-duty traffic details in 1998 were not included in the income tax return filed by Berry with the Internal Revenue Service for the tax year 1998. They were included in the amended return.
4. Berry earned income as a real estate agent in 1997 totaling $1,345, but he did not submit an application for approval for secondary employment as a real estate agent until 2000.

A hearing was conducted before the Commission on May 17, 2001. The parties further stipulated Berry’s 1998 federal income tax return was filed on April 15, 1999, and an amended return was filed in December, 2000. After hearing testimony and receiving evidence, the Commission took the matter under advisement.

In a decision rendered on June 19, 2001, the Commission found, as a fact, Berry knew other troopers turned in traffic detail forms; and, that as a Sergeant, Berry had received traffic detail forms from other troopers. Further, the Commission found that during an interview with Internal Affairs, Berry stated he understood the procedure required him to “make a copy of the check and escort, the traffic detail sheet that was completed at the time you did the traffic detail and send them both to the Troop.” The Commission also acknowledged that Procedural Order 306 was amended on May 3, 2000, by adding the words “traffic details,” as one of the examples of special events and off-duty details addressed in the order. The Commission noted, however, that prior to this revision, it had been the custom and practice for troopers to submit DPSSP 4107 forms for traffic details worked.

The Commission concluded SP regulations required Berry to turn in detail forms along with a copy of the check for the traffic details he worked in 1998 and 1999 and his failure to do so was a violation of the applicable Procedural Order. The Commission also found Berry intentionally failed to report off-duty detail wages on his 1998 income tax returns and he intentionally failed to seek approval for secondary employment despite his knowledge of its requirement. Noting that as a supervisor Berry was expected to set an example, the Commission found his conduct indicated he did not do so. Considering all of Berry’s violations, the Commission concluded Berry should not serve in a supervisory position and upheld his demotion. The Commission also held that it did not have jurisdiction to hear Berry’s appeal of his “needs improvement” rating, citing Louisiana Department of Agriculture and Forestry v. Sumrall, 98-1587 (La.3/2/99), 728 So.2d 1254. Accordingly, the Commission granted SP’s motion for summary disposition and dismissed Berry’s appeal of his service rating.

From the Commission’s decisions, Berry appeals asserting ten assignments of error:

1. The State Police Commission erred in finding that appellant was guilty of a violation of any Procedural Rules or Orders;
2. The State Police Commission erred in failing to recognize that the Procedural Rule as it existed at the time of the alleged inappropriate action by the appellant did not apply to traffic details;
3. The State Police Commission erred in basing their decision on matters not charged in the letter of demotion;
4. The State Police Commission erred in failing to conclude the real estate commission income was minor and only generated from family transactions;
5. The State Police Commission erred in failing to realize that permission for secondary employment of this type is routinely granted and no harm to the service occurred as a result of appellant’s oversight in obtaining permission;
6. The State Police Commission erred in finding cause sufficient to warrant appellant’s demotion;
7. The State Police Commission erred in that the Office of State Police failed to establish by competent evidence any harm to the service;
8. The State Police Commission erred in failing to reduce the penalty of demotion to a lesser discipline commensurate with the severity of the infraction;
9. The State Police Commission erred in failing to find that it had jurisdiction to hear Berry’s appeal of his performance rating;
10. The State Police Commission erred in failing to award attorney fees.

STANDARD OF REVIEW

An employee who has gained permanent status in the classified state police service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. La. Const, art. X, § 46(A). Such an employee may appeal from any disciplinary action to the Commission, and the burden of proof on such an appeal, |7as to the facts, is on the appointing authority. Id. The Commission shall have the exclusive power and authority to hear and decide all disciplinary cases. La. Const, art. X, § 50. The Commission’s authority “to hear and decide” disciplinary cases includes a duty to decide independently from the facts presented whether the appointing authority has good cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the cause. Department of Public Safety and Corrections, Office of State Police v. Mensman, 95-1950, p. 4 (La.4/8/96), 671 So.2d 319, 321.

The decision of the Commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the Commission is located. La. Const, art. X, § 50. In these instances, the appellate court is presented with a multifaceted review function. Bannister v. Department of Streets, 95-404, p. 8 (La.1/16/96), 666 So.2d 641, 647. First, as in other civil matters, deference will be given to the factual conclusions of the Commission. Therefore, the Commission’s findings of fact will not be reversed or modified unless manifestly erroneous (clearly wrong). Id. In the present case, many of the pertinent facts have been stipulated.

Second, in evaluating the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the reviewing court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion. Id.

VIOLATION OF PROCEDURAL ORDERS

(Assignments of Error Nos. 1-5)

On appeal, Berry asserts the Commission erred in finding he violated any Procedural Orders. Because he was found to have violated three different Procedural Orders, we shall address each one separately.

A. Procedural Order 201

(Assignment of Error No. 1)

Procedural Order 201, Section I, Subsection B, Paragraph 1(a) required Berry to |Rconform to, and abide by, the laws of the United States and the laws of Louisiana. The appointing authority charged and the Commission found as fact that Berry violated this Procedural Order by failing to report wages earned from his off-duty traffic details on his 1998 income tax return in violation of 26 U.S.C. § 6011, Subpart A.

The parties stipulated Berry did not report the income he earned from the thirteen details he conducted in 1998 on his 1998 income tax return. The parties further stipulated Berry filed his 1998 federal taxes on April 15, 1999, and he subsequently filed an amended return in December 2000 to correct the return. However, the amended return was completed only after the violation was discovered, the investigation was concluded, and Berry was demoted. There is no dispute Berry under-reported his income in 1998 and was in violation of federal law when he was cited for violating Procedural Order 201.

This factual finding of the Commission is not manifestly erroneous.

B. Procedural Order 202

(Assignments of Error Nos. 1, 4, and 5)

Procedural Order 202, Section IV, Subsection A required Berry to hold no secondary job or position without the express written approval of the Superintendent of State Police. The appointing authority charged and the Commission found as a fact that Berry violated this Procedural Order by failing to obtain approval to work as a licensed real estate agent.

The parties stipulated Berry had earned income as a real estate agent in 1997 totaling $1,345, but did not submit an application for approval of secondary employment as a real estate agent until 2000. The record indicates Berry filed the application in March 2000, approximately one month after the investigation began.

On appeal, Berry asserts permission for secondary employment of this type is routinely granted. He also asserts the amount of the secondary income was minor and was generated only by family transactions. Therefore, he argues, his oversight in obtaining permission was only “a technical violation.”

First, we note that a violation is a violation, whether technical or otherwise. The circumstances surrounding the violation may have some determinative effect on the |9discipline meted out, but the fact a violation occurred is not in dispute. Second, Berry presented absolutely no evidence to support his contention that permission for “secondary employment of this type” is routinely given. Finally, we disagree with his contention that all of the secondary income was generated by family transactions. At the hearing, Berry testified to at least one outside transaction in 1997 for which he received a commission in the amount of $1,345. Berry admits he did not obtain approval for his secondary employment as a real estate agent in 1997 as required.

Therefore, the Commission’s factual finding that Berry violated Procedural Order 202 is not manifestly erroneous.

C.Procedural Order 306

(Assignments of Error Nos. 1, 2, and 3)

Procedural Order 306, Section VI, Subsection F required Berry to record payments made to him on DPSSP form 4107 (Off-Duty Detail Receipt), and to process them in the same manner as off-duty escort checks, i.e., turn in the DPSSP 4107 form along with a copy of the check at the earliest opportunity. The appointing authority charged and the Commission found as a fact that Berry violated this Procedural Order in failing to submit the required paperwork for the 13 traffic details he worked in 1998 and the 17 traffic details he worked in 1999.

Berry stipulated to the fact that he did not submit the detail forms for the off-duty traffic details he worked in 1998 and 1999. He argues that Procedural Order 306, as it existed in 1998 and 1999, the time of the alleged infractions, did not require the submission of paperwork for traffic details.

Procedural Order 306 was revised on March 31, 1997, August 16, 1999, and finally on May 3, 2000. Those portions of the 1997 and 1999 revisions pertinent here are substantively the same and are as follows:

A. Sponsors of special events (boat races, trail rides, fishing tournaments, fairs and festivals) often seek to employ additional police personnel for traffic control, security, or crowd control. Off-duty personnel may be employed to perform those functions for which State Police would not normally be required to provide off-duty officers.
|inE. Payments for officers are to be recorded on DPSSP 4107 (Off-Duty Detail Receipt) and processed in the same manner as off-duty escort checks.

Those same portions of Procedural Order 306 as amended in 2000 provide as follows:

A. Sponsors of special events/off-duty details (boat races, trail rides, fishing tournaments, fairs, festivals and traffic details, etc.) often seek to employ additional police personnel for traffic control, security, or crowd control. Off-duty
personnel may be employed to perform those functions for which State Police would not normally be required to provide off-duty officers.
sjc ;j: ‡
F. Payments for officers are to be recorded on DPSSP 4107 (Off-Duty Detail Receipt) and processed in the same manner as off-duty escort checks.

The letter of demotion specifically charged Berry violated Subsection F of Procedural Order 306 (formerly Subsection E in the 1997 and 1999 revisions.) Etland testified that payments for special events details as used in this subsection included off-duty traffic details. The evidence in the record reveals numerous DPSSP 4107 forms filled out by Berry for off-duty traffic details, which he concedes he did not process in the same manner as escorts as required by Subsection F (former Subsection E.)

However, Berry argues this subsection refers only to listed special events in Subsection A which did not include traffic details in the applicable 1997 and 1999 revisions. He further asserts the list contained in the parentheses was exclusive and the term “traffic control”, as used in Subsection A, did not include traffic details. SP counters that the listing provided in the 1997 and 1999 revisions was illustrative and the term “traffic control”, by definition, includes traffic details.

State Police rules have the effect of law. La. Const, art. X, § 48(A)(4). As such, they are subject to the statutory and jurisprudential rules for statutory construction and interpretation relative to legislation in general. See Sanders v. Department of Health & Hospitals, 388 So.2d 768, 770 (La.1980); Casse v. Department of Health and Hospitals, 597 So.2d 547, 550 (La.App. 1 Cir.1992). We find the following rules applicable to the case sub judice. The interpretation of legislation is primarily the search for legislative intent. Burnette v. Stalder, 00-2167, p. 6 (La.6/29/01), 789 So.2d 573, 577. When a law is clear and unambiguous, and its |¶1 application does not lead to absurd consequences, it shall be applied as written and no further interpretation may be made in search of legislative intent. La. C.C. art 9; La. R.S. 1:4. However, if a law is ambiguous or susceptible of more than one reasonable interpretation, statutory construction is necessary. Touchard v. Williams, 617 So.2d 885, 888 (La.1993). Accordingly, the starting point for the interpretation of any law is the language of the law itself. Id.

The words of a law must be given their generally prevailing meaning. La. C.C. art. 11. Louisiana Revised Statute 1:3 provides, in pertinent part: “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”

As ascertained from the record, a traffic “detail” is a job worked by an off-duty officer for a private business or entity that hires and pays the officer to handle a particular traffic situation. “Control” is defined by Black’s Law Dictionary, 329, as the “[pjower or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee.” Given the broad scope of the word “control” in its ordinary, usual meaning, the words “traffic control”, as used in Subsection A, includes traffic details.

All of the versions of Procedural Order 306 clearly and unambiguously cover off-duty personnel conducting “traffic control” at special events. Accordingly, our statutory analysis ends here without resort to custom and usage. Berry acknowledges he did not report his income as required by Procedural Order 306 on thirty occasions over two years. The violation is established.

Ordinarily a change in wording of a statute, or in this case an order, is construed as a change in the law. See SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 17 (La.6/29/01), 808 So.2d 294, 305. See also The Sloop Active v. The United States, 11 U.S. (7 Cranch) 100, 102, 3 L.Ed. 282 (1812) where the Supreme Court concluded that an amendment to a law making a vessel liable to forfeiture was a “legislative confession that the law was not so before.” In the instant case, the change did not alter or effect | T!>the operative language of the Procedural Order in force at the time of the charged violations. The addition of “off-duty details” and “traffic details, etc.” within Section A of Procedural Order 306 did not alter an off-duty officer’s duty to process his payments according to established procedure when the officer has been employed for traffic control, which Berry concedes occurred here. The 1997 and 1999 revisions of Procedural Order 306 still pertained to traffic details. The list in parentheses is merely illustrative. Accordingly, the subsequent 2000 revision which specifically added the words “traffic details” to the listing set out in Procedural Order 306, Subsection A, merely added another item to an illustrative list.

Berry was required to submit traffic details under all versions of Procedural Order 306. Berry stipulated he did not do so on 13 occasions in 1998 and 17 occasions in 1999. Berry violated Procedural Order 306. Accordingly, the Commission based its disciplinary decision on legal cause and it did not abuse its discretion by imposing a punishment on Berry.

Finally, Berry argues the Commission erred in reaching its factual finding that under the 1997 and 1999 revisions, “it was the custom and practice for Troopers to submit DPSSP form 4107 for both escort and traffic details.” He contends he was charged in the letter with violating the 2000 revision of Procedural Order 306 and, therefore, such a factual finding was beyond the scope of the charges set forth in the letter of demotion. This argument is without merit.

The Commission did not commit legal or manifest factual error in finding that Berry violated SP Procedural Orders 201, 202, and 306.

Accordingly, assignments of error 1, 2, 3, 4, and 5 are without merit.

COMMISSION’S EXERCISE OF DISCRETION

(Assignments of Error Nos. 6, 7, and 8)

On appeal, Berry asserts the SP failed to establish by competent evidence any harm to the service. Berry contends the Commission erred in finding cause sufficient to warrant his demotion and in failing to reduce the penalty of demotion to a lesser discipline commensurate with the severity of the infraction.

|13As previously stated, the Commission’s exercise of its discretion in determining whether there is legal cause for imposing punishment and whether the punishment is commensurate with the infraction should not be modified by this court unless it is arbitrary, capricious or characterized by an abuse of discretion. Bannister, 95-0404 at p. 8, 666 So.2d at 417. “Cause” has been interpreted to include conduct prejudicial to the public service involved or detrimental to its efficient operation. Id. “Arbitrary or capricious” means the absence of a rational basis for the action taken. Id.

First, it must be determined whether cause for Berry’s demotion existed. Berry alleges the SP did not bear its burden of proof in showing his infractions impaired the efficient operation of the SP. We disagree.

One of the primary missions of the SP is law enforcement. When an officer in that service violates the law, it casts doubt upon the credibility of the service to ably conduct one of its principal functions. Moreover, since the public puts its trust in the police department as a guardian of its safety, it is essential the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. See Newman v. Department of Fire, 425 So.2d 753, 756 (La.1983). The SP operates as a quasi-military institution where strict discipline is imperative. See Stevens v. Department of Police, 2000-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627. Berry’s numerous violations of internal procedural orders, in addition to his violation of federal law, constitute conduct prejudicial to the public service of the SP.

In addition, Berry’s continued violation of Procedural Order 306 resulted in a breach of an agreement that SP had with the Internal Revenue Service about the administrative handling of off-duty detail wages for tax purposes. Pursuant to a 1990 agreement, SP was required to give each officer an additional W-2 indicating his off-duty detail wages to ensure proper income reporting. SP relied on the officers’ compliance with Procedural Order 306 in turning in copies of the detail slips and checks to determine the correct amount to be listed on the additional W-2 forms. Berry’s failure to comply with Procedural Order 306 prevented SP from issuing him proper 114additional W-2 forms in 1998 and 1999 to comply with the agree-merit. Consequently, Berry’s actions had a real and substantial effect on the efficient operation of the SP.

The Commission’s finding of cause is not arbitrary, capricious or an abuse of discretion.

Having found sufficient legal cause to discipline Berry, we must now determine whether the discipline imposed was commensurate with the severity of the infractions. During the investigation, Berry stated he knew SP procedure required him to turn in traffic detail forms. Therefore, he knowingly committed 13 infractions of this procedure in 1998 and 17 infractions in 1999. Berry also admits he under-reported his income in 1998; a violation of both federal law and the SP’s agreement with the I.R.S. These violations cumulated with his failure to submit an application for secondary employment are repeated failures to adhere to SP’s established standards of conduct.

As a supervisor, Berry had a duty to set an example for his subordinates, but more importantly, Berry was charged with ensuring his subordinates knew and followed SP policies and procedures. When he violated various procedural orders, the appointing authority and the Commission could reasonably conclude he could not be entrusted to ensure that those under his command understood and followed them)

Considering all of the violations, the Commission’s affirmance of Berry’s demotion from Sergeant to Master Trooper was not arbitrary, capricious or an abuse of discretion.

Assignments of error nos. 6, 7, and 8 are without merit.

COMMISSION’S JURISDICTION

(Assignment of Error No. 9)

Berry contends the Commission erred in determining it did not have jurisdiction to entertain the appeal of his “needs improvement” performance rating. Berry argues State Police Rule 13.10 specifically grants him the right to appeal an unsatisfactory service rating. SP argues that, notwithstanding any Commission rules, the Louisiana Constitution limits the Commission’s jurisdiction to disciplinary and discrimination claims under art. X, § 46.

Citing the rationale and holdings of the Louisiana Supreme Court in Louisiana Department of Agriculture and Forestry v. Sumrall, 98-1587 (La.3/2/99), 728 So.2d 1254, the Commission held its jurisdiction was limited by La. Const, art. X, §§ 46 and 50. As the appeal of an unsatisfactory rating is not provided for in La. Const, art. X, §§ 46 and 50, the Commission concluded it lacked jurisdiction over such an appeal.

Berry counters that Sumrall is not on point. He further urges the Commission lacks the authority to determine the constitutionality of its own rules, which, in effect, it did in deciding it was without jurisdiction to hear the appeal of his “needs improvement” rating.

Although not precisely on point, we agree with the Commission that the rationale and holdings of Sumrall preclude a finding it had jurisdiction over Berry’s appeal of his “needs improvement” rating. In Sumrall, the Louisiana Supreme Court addressed the extent of the State Civil Service Commission’s powers, as limited by the Louisiana Constitution, specifically with regard to discrimination claims. The Supreme Court concluded that Article X of the Louisiana Constitution limits the State Civil Service Commission’s power to hear the appeals of state civil service employees to two categories of claims: (1) discrimination claims provided for in § 8(B); and (2) removal or disciplinary claims provided for in §§ 12(A) and 8(A). Sumrall, 98-1587 at p. 7, 728 So.2d at 1260. The Court noted the Commission’s authority to enact rules, though broad and general, is nonetheless limited by the terms expressed in the constitution. Id., 98-1587 at p. 10, 728 So.2d at 1261. Therefore, the court found that any Commission rules expanding its power beyond constitutional limits were unconstitutional. Id., 98-1587 at p. 18, 728 So.2d at 1268. Specifically, the Court held unconstitutional particular civil service rules to the extent they purported to authorize appeals to the Commission on discrimination claims outside the scope of the Commission’s limited jurisdiction as defined under Article X, §§ 8 and 12 of the Louisiana Constitution. Id., 98-1587 at p. 15, 728 So.2d at 1264.

Similarly, La. Const, art. X also limits the Commission’s power to: (1) discrimination claims provided for in § 46(B); and (2) removal or disciplinary claims 1 ^provided for in §§ 46(A) and 50. Any Commission rules that purport to expand the Commission’s jurisdiction beyond the boundaries set forth in the constitution must fall.

In the case at hand, no party is contesting, nor or we addressing, the constitutionality of the Commission rule at issue. Moreover, we agree that the Commission lacks the power to rule on the constitutionality of its own rules. However, the Commission is certainly not precluded from recognizing that, in the face of a conflict between its rules and certain constitutional provisions, the constitutional provisions prevail. The Constitution is the supreme law, to which all legislative acts, ordinances, rules and regulations must yield. Macon v. Costa, 437 So.2d 806, 810 (La.1983).

Therefore, we hold the Commission has no authority to entertain the appeal of Berry’s “needs improvement” rating unless it constitutes a discrimination, removal, or disciplinary action. Berry has alleged no discrimination nor has he been removed based on the rating. However, in brief, Berry asserts his petition of appeal of the “needs improvement” rating alleged the rating was nothing more than an additional disciplinary action in disguise. Our review of the petition of appeal reveals no such allegation. Rather, the petition of appeal asserts the appeal of the rating was taken pursuant to the Commission Rules. The petition of appeal goes on to request that the appeal of the rating be consolidated with the appeal of his disciplinary action, implying the rating is not part of the disciplinary action

More significantly, at the hearing, Berry never argued that the rating was a disciplinary action. Instead he argued that “the negative portion of the rating that caused it to be less than satisfactory, is dependent upon [the] disciplinary action. It’s the same set of facts. So ... that was the reason for consolidating .... ” The fact l17that the “needs improvement” rating is based on the same occurrences as the disciplinary action does not, in and of itself, convert the rating into a disciplinary action. Berry does not allege he suffered any repercussions from the rating; he had already been demoted by the time the rating was issued. Nor does he allege the rating can or will be used against him in the future. On the basis of the record before us, we cannot say this “needs improvement” rating is a disciplinary action.

Concluding that Berry’s “needs improvement” rating is not discriminatory, and is not a removal or disciplinary claim, we hold, as a matter of law, that the Commission lacked jurisdiction over this issue.

Assignment of error number 9 is without merit.

ATTORNEY FEES

(Assignment of Error No. 10)

In his final assignment of error, Berry contends the Commission erred in failing to award him attorney fees. Because we affirm the finding of the Commission, there is no authority- for the award of attorney fees.

Assignment of error number 10 is without merit.

DECREE

For the foregoing reasons, the decisions of the State Police Commission upholding the demotion of Reuben 0. Berry, Jr. by the Department of Public Safety and Corrections, Office of State Police, and declining to exercise jurisdiction over the appeal of his “needs improvement” performance rating are affirmed. Costs of this appeal are assessed against appellant, Reuben 0. Berry, Jr.

AFFIRMED.

      . Although the Commission's recitation of the parties' stipulations refers to income in the amount of $13,145, a review of the record indicates that the Commission's reference to this larger amount was solely a typographical error. All of the evidence presented to the Commission, including Berry’s testimony and the demotion letter, established that the amount Berry earned was $1,345. There is no basis for concluding that the Commission actually based its findings on the larger amount.

      . Article X, § 46 of the Louisiana Constitution of 1974 provides, in pertinent part, as follows:
      (A) Disciplinary Actions.... A classified state police officer subjected to ... disciplinary action shall have the right of appeal to the commission.
      (B) Discrimination. No classified state police officer shall be discriminated against because of his political or religious beliefs, sex or race. A classified state police so discriminated against shall have the right of appeal to the commission....
      Article X, § 50 of the Louisiana Constitution of 1974 provides, in pertinent part, as follows:
      The State Police Commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases


source: Caselaw Access Project

license: Public Domain

text:
    Elizabeth H. STRAIN Wife of/and James R. Strain, Jr. v. Erica WILLIAMS, et al.
    No. 2001 CA 2157.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      G. Brice Jones, Slidell, Counsel for Plaintiffs/Appellants Elizabeth & James Strain.
    James S. Rees, III, Kathleen E. Simon, Covington, Counsel for Defendant/Appellant Allstate Insurance Co.
    Mark A. Myers, Covington, Counsel for Defendants/Appellees Taco Bell of America, Inc., Zurich American Ins. Co. & TIG Insurance Co.
    Before: KUHN, DOWNING, and LANIER, JJ.

      . The Hon. Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   |,LANIER, J.

This is a suit in tort for damages arising out of an automobile accident that occurred between plaintiff, Elizabeth Strain, and defendant, Erica Williams. This appeal is from the granting of a summary judgment in favor of Taco Bell of America, Inc. (Taco Bell), in which the trial court found that defendant, Williams, was not in the course and scope of her employment with Taco Bell at the time of the accident. Plaintiffs, Elizabeth and James Strain (the Strains), and defendant, Allstate Insurance Company (Allstate), took this devolutive appeal.

FACTS AND PROCEDURAL HISTORY

On February 25, 1999, Williams was an employee of Taco Bell working the morning shift. Around 10:00 a.m., Williams drove a co-employee’s vehicle to acquire lunch for herself and several other Taco Bell employees. While attempting to make a left turn into a McDonald’s parking lot, Williams turned into the path of plaintiffs’ vehicle and a two-vehicle collision occurred. The Strains filed suit on January 19, 2000. Made defendants were: (1) Erica Williams; (2) Jeannette Carter, as owner of the vehicle driven by Williams; (3) Safeway Insurance Company, as liability insurer of Carter; (4) Allstate, as un-derinsured/uninsured motorists carrier of the Strains; and (5) Taco Bell, by amended petition, as Williams’ employer. Plaintiffs alleged that at the time of the accident, Williams was in the course and scope of her employment with Taco Bell. Allstate filed a third party demand against Taco Bell on December 4, 2000, alleging Williams was in the course and scope of her employment at the time of the accident. Taco Bell filed a motion for summary judgment on May 2, 2001, requesting the court to find that Williams was not in the course and scope of her employment. Allstate filed a motion for partial summary judgment on May 15, 2001, requesting the court to find Williams was in the course and scope of her employment at the time of the accident. A hearing was held on the motions for summary judgment on May 17, 2001. Judgment was rendered on May 22, 2001, in favor of Taco Bell granting its motion for summary judgment and against Allstate denying its motion for partial summary judgment. The judgment was designated as a final judgment on May 22, 2001.

| oSUMMARY JUDGMENT

(Appellees’ assignment of error no. 1)

Plaintiffs and defendant, Allstate, assert the trial court erred in finding Williams was not in the course and scope of her employment and, accordingly, granting Taco' Bell’s motion for summary judgment and denying Allstate’s motion for partial summary judgment.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B; Calhoun v. Hoffman-La Roche, Inc., 98-2770, p. 4 (La.App. 1 Cir. 2/18/00), 768 So.2d 57, 60-61, writ denied, 2000-1223 (La.6/23/00), 765 So.2d 1041. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966A(2). After adequate discovery or after a case is set for trial, a motion that shows there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, shall be granted. La. C.C.P. art. 966C(1).

Ordinarily, a district court’s finding that a particular act is within the course and scope of employment for purposes of vicarious liability is a factual finding governed by the manifest error rule. Baumeister v. Plunkett, 95-2270, p. 7 (La.5/21/96), 673 So.2d 994, 998. However, in determining whether summary judgment is appropriate, appellate courts review summary judgments de novo under the same criteria that govern the trial judge’s consideration of whether a summary judgment is appropriate. Davis v. AMS Tube Corp., 2000-1311, p. 4 (La.App. 1 Cir. 6/22/01), 801 So.2d 466, 468, writ denied, 2001-2122 (La.11/2/01), 800 So.2d 877; Robertson v. Northshore Regional Medical Center, 97-2068, p. 5 (La.App. 1 Cir. 9/25/98), 723 So.2d 460, 463.

Under Louisiana law, an employer is answerable for the damage occasioned by its servants in the exercise of the functions in which the servant is employed. La. C.C. art. 2320; Timmons v. Silman, 99-3264, p. 4 (La.5/16/00), 761 So.2d 507, 510; Orgeron v. McDonald, 93-1353, p. 4 (La.7/5/94), 639 So.2d 224, 226. In the application of Article 2320, an employer’s vicarious liability extends only to the employee’s tortious conduct that is within the course and scope of employment. McDonald, 93-1353 at p. 4, 639 So.2d at 226. In contrast to intentional tort cases, the court in a negligence case need only determine whether the employee’s general activities at the time of the tort were within the scope of his employment. Ermert v. Hartford Ins. Co., 559 So.2d 467, 478 (La.1990). An employer is responsible for the negligent acts of its employees when the conduct is so closely connected in time, place, and causation to the employment duties of the employer that it constitutes a risk of harm attributable to the employer’s business. McDonald, 93-1353 at p. 4, 639 So.2d at 227; LeBrane v. Lewis, 292 So.2d 216 (La.1974).

In McDonald, the supreme court listed several factors for determining whether an employer is liable for the negligent acts of its employee, including: payment of wages by the employer; the employer’s power of control; the employee’s duty to perform the particular act; the time, place and purpose of the act in relation to service of the employer; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; the motivation of the employee for performing the act; and the reasonable expectation of the employer that the employee would perform the act. McDonald, 93-1353 at pp. 4-5, 639 So.2d at 227; accord Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La.1985).

The Louisiana Code of Civil Procedure states, “[ajfter adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, shall be granted.” La. C.C.P. art. 966C(1). (Emphasis added.) It is undisputed that Williams was paid an hourly wage at the time of the accident and was not required to punch out ^before making her lunch run. This was standard policy. It is also undisputed that the accident did not occur on Taco Bell premises. However, there is dispute as to whether Williams was required by the assistant manager, Shannon Allred, to make the lunch run.

In Williams’ deposition of November 9, 2000, she testified she was told by Allred to make the lunch run. Her testimony from that deposition states, in pertinent part:

Q. And you were using the vehicle to go get food for everybody else on the shift?
A. Yes.
Q. Were you told to do that by someone on the crew?
A. Yes.
Q. Who was that? The shift leader?
A. Shannon Allred.
Q. And your mission at the time of the accident was to go get food, get food [sic] and come right back?
A. Correct.
Q. And that was the shift leader that told you that, Ms. Shannon Allred?
A. Right.
Q. Do any of the people that were working with you then at the time of the accident still work with you?
A. Shannon Anglin, the general manager now....
Q. What does the general manager do?
A. She runs the store.
Q. So she could verify that you were on a mission for the store at the time of the accident?
A. She probably can because records that we have from then ....
Q. How was it that Ms. Allred would appoint you to pick up food for the people on the shift if you had no vehicle?
A. She had a car also. Her car was the one I was going to use ....

Williams testified in her deposition of February 21, 2001, that she volunteered to get lunch on the day of the accident. Also, Williams testified she understood she was not to run any personal errands or spend any additional time outside the store other than to acquire lunch for the employees.

However, Allred stated in her affidavit that there was no policy against the employee making the “lunch run” performing personal errands while out of the store. And contrary to Williams’ testimony, All-red stated the employees, while on a lunch run, [fiWere not subject to any control by Taco Bell. She also stated Taco Bell employees were never required to pick up lunch for other workers and such practice was “totally voluntary”. Allred asserted Taco Bell provided food for all employees at no charge, and the employees’ decision to purchase food from other restaurants was their personal choice. However, Williams testified this was not always true. Only when the store met certain minimum waste requirements were the employees allowed to eat at no charge.

Applicable substantive law determines materiality. Therefore, whether a particular fact in dispute is material can be viewed only in light of the substantive law applicable to the case. Davis, 2000-1311 at pp. 4-5, 801 So.2d at 468, writ denied, 2001-2122 (La.11/2/01), 800 So.2d 877. Ordinarily, an employee who leaves his employer’s premises and takes his noon hour meal at home or some other place of his own choosing is outside the course of his employment. Davis, 2000-1311 at p. 7, 801 So.2d at 470, quoting, A. Alston Johnson, III, 13 Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice [Malone & Johnson] § 163 at 343 (3rd ed.1994). However, in this case, there are disputed material issues of fact, including: Taco Bell’s power of control; Williams’ duty to perform the particular act; the relationship between Williams’ act and Taco Bell’s business; the benefits received by Taco Bell from the act; the motivation of Williams for performing the act; and the reasonable expectation of Taco Bell that Williams would perform the act. See McDonald, 93-1353 at pp. 4-5, 639 So.2d at 227. Because the evidence in this record is subject to conflicting interpretations or reasonable persons might differ as to its significance, genuine issues of material fact exist and summary judgment is improper. See La. C.C.P. art. 966B & C; see Jackson v. State Teachers’ Retirement Sys. of Louisiana, 407 So.2d 416, 418 (La.App. 1 Cir.1981); Roger v. Dufrene, 553 So.2d 1106, 1110-1111 (La.App. 4 Cir.1989), writ denied, 559 So.2d 1358 (La.1990). There is a lack of sufficient evidence to warrant the granting of a summary judgment in this case.

Based on the foregoing, the trial court erred in granting summary judgment in favor of Taco Bell.

| .DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Taco Bell is reversed; and this action is remanded to the trial court for further proceedings in accordance with law. Allstate and Taco Bell are each cast for one-half of the costs of this appeal.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . Pursuant to La. C.C.P. art. 968, no appeal lies from the denial of a motion for summary judgment. The trial court certifying the judgment denying Allstate’s motion for partial summary judgment as final was ineffectual. Certification of a partial summary judgment is allowed under La. C.C.P. art 1915. However, that article does not authorize the certification of a judgment denying a motion for summary judgment as final. La. C.C.P. art. 968; La. C.C.P. art.1915; Belanger v. Gabriel Chemicals, Inc., 2000-0747, p. 5 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, 563, writ denied, 2001-2289 (La.11/16/01), 802 So.2d 612. Therefore, we do not consider that part of plaintiffs' and Allstate's appeal.

      . We note that effective January 1, 2002, Rule 2-1.16 of the Uniform Rules — Courts of Appeal requires that depositions submitted as exhibits to a record consist of one page of deposition testimony per physical page and that they "do not contain reduced images of multiple pages placed on one page.” Failure to meet this standard requires the party who introduced the deposition to provide a certified true copy of the substandard document in the required format. Williams' deposition testimony is in a condensed form, but because the appeal was lodged before the effective date of Rule 2-1.16, it is not applied in this case.


author: J^PETTIGREW, J.

text:
    STATE of Louisiana v. Kenisha DUNCAN
    No. 2002 KA 0509.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Hon. Walter P. Reed, District Attorney, Covington, Dorothy A. Pendergast, Special Appeals Counsel, Metaire, for the State of Louisiana.
    Frederick Kroenke, Baton Rouge, for Defendant-Appellant Kenisha Duncan.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^PETTIGREW, J.

Kenisha Duncan was indicted by a grand jury for the second degree murder of her daughter, Chantell Duncan, on December 19, 2000, in violation of La. R.S. 14:30.1. The defendant pled not guilty. The indictment was later amended to provide that the killing occurred between December 17, 1996 and December 18, 2000. Immediately prior to trial, the State again amended the indictment to provide that the acts occurred between September 3, 1997 and December 18, 2000, explaining that September 3,1997, was the date the defendant turned 17 years old.

Following a jury trial, the defendant was found guilty as charged. The defendant subsequently filed a motion for new trial, a motion for post verdict judgment of acquittal, and a motion in arrest of judgment, all of which were denied by the trial court. Thereafter, the trial court sentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.

The defendant appeals her conviction, arguing that the evidence was insufficient to support her conviction and that the trial court erred in allowing the State to amend the indictment and to introduce evidence of prior acts of abuse and neglect in violation of La.Code Evid. art. 404(B). For the reasons that follow, we affirm.

FACTS

On December 18, 2000, Kevin Katz of the St. Tammany Parish Fire District responded to a 9-1-1 call. When he arrived at the location, he saw two houses: a small, shotgun-style cottage, and a larger home. A man walking between the two houses gestured toward the larger house. Katz saw a woman sitting in a large, open window in the larger house. Katz testified the woman did not seem upset in any way. He entered the home through the open window and saw a very small child lying in a bed on the far side of the room. Katz noticed the child had on lightweight, spring clothing.

Upon Katz checking the child for a heartbeat and finding none, he placed the child, who appeared to be an infant because of her size, on the floor to begin performing CPR. Katz testified that he could feel the child was extremely cold to the | ¡¡touch, even through his latex gloves. The child was soon placed in an ambulance, where paramedics attempted to resuscitate her. Katz testified that throughout the incident, he did not see the mother of the child (the same woman he had seen sitting in the window) show any emotion at all, nor did he see her ask anyone how the child was doing.

Officer Henry Marquez, Jr. testified that he also responded to the 9-1-1 call. When he asked the defendant what happened, she told him that she had come to the front cottage last night, but her father was not home; so she got the keys to the larger house and took her daughter there to spend the night. They woke up the next morning and ate eggs and grits, and then went back to bed. Officer Marquez additionally testified the defendant told him that around 9:00 a.m., she woke up to find her daughter laying on the floor unresponsive; so she picked her up, put her on the bed, and called 9-1-1. Officer Marquez noted that it was extremely cold that morning; and that the defendant was calm, cordial, and not upset while the paramedics were working on her daughter.

The child was taken by ambulance to the St. Tammany Parish Hospital. Detective Jobeth Rickels was at the hospital where she interviewed the defendant. Detective Rickels testified that the defendant was not emotional, did not ask about the condition of her child, and did not ask to see the child. After being advised of her rights and signing a waiver of rights form, the defendant answered Detective Rickels’ questions.

Detective Rickels testified that the defendant told her she and Chantell had been to Mississippi the day before to visit with relatives and celebrate Chantell’s birthday. Chantell had turned four years old on December 17. When they came back home that night, the cottage where they lived with the defendant’s father was locked; so they went to the larger house in the rear to spend the night. The defendant also told Detective Rickels they woke up the next morning, ate eggs and grits for breakfast, and then went back to sleep. According to the defendant, she awoke later to find Chantell on the floor.

|4According to Detective Rickels, the defendant told her that she would often tie Chantell’s wrists and ankles together with plastic electrical ties to make her be still; that she would make her stand tied up in the corner, that she had put a belt around her neck; and that she would discipline her with a switch, her hand, or a belt. Detective Rickels testified that the defendant told her that her father, with whom they lived, would also punish Chantell; and that she and her father were the only individuals who disciplined the child.

Dr. Scott Benton testified that Chantell was brought to Children’s Hospital on the afternoon of December 19, 2000. According to Dr. Benton, Chantell arrived in critical condition because of multi-system organ failure. Chantell had a core body temperature of 80.2 degrees. Although Chantell had just turned four years old, her body mass and body weight was that of a much younger child. The absence of buttock fat and buttock muscle supported Dr. Benton’s conclusion that Chantell was suffering from starvation. The child had poor hygiene, dirt in her hair, and smelled bad. Dr. Benton noted she had significant edema in the face, abdomen, legs, and extremities as a result of her systems not functioning properly, because of hypothermia and “significant starvation.”

Dr. Benton also testified about numerous injuries to Chantell’s body, which could only have resulted from abuse. Dr. Benton testified Chantell had bruising on her face and multiple fresh, healing, and healed injuries all over her body, many of which were in a looped scar pattern. The looped scar pattern, in Dr. Benton’s opinion, was indicative of Chantell having been beaten or whipped with an extension cord — something that Dr. Benton had come across in other child abuse cases. Chantell also had scars all over her body. Some scars were fresh, some were healing, and some had already healed. Dr. Benton testified that Chantell’s scars were so numerous that he had to draw diagrams of their location rather than document them in a written description.

Dr. Benton also found ligature injuries on the child’s wrists and ankles, all in different stages of healing. X-rays revealed fractures to Chantell’s hand and foot, and a traction in her upper arm, which Dr. Benton described as a “twisting-type” injury that occurs where the muscle has been stripped off the bone as a result of grabbing and ^twisting that area. Dr. Benton additionally testified he believed Chantell’s condition indicated she had suffered pain unjustifiably.

Despite the doctors’ best efforts, Chan-tell died hours later. Dr. Benton testified that although her core temperature of 80.2 degrees was low enough to cause death by itself, Chantell’s death was also the result of “significant starvation,” which contributed to the multi-system organ failure.

Lieutenant Jim Richard also testified about Chantell’s physical condition prior to her death. Like Dr. Benton, he saw numerous looped-style bruises and injuries on her arms, chest, legs, and back in different stages of healing. Lieutenant Richard also noted a contusion to Chantell’s forehead and lacerations to her wrists and ankles, which indicated she had been bound. Lieutenant Richard additionally testified that although it was freezing outside that morning, Chantell had been found and brought to the hospital in a sleeveless shirt and shorts.

Lieutenant Richard assisted with a search of the cottage. He testified the defendant showed him a toolbox where she and her father kept the plastic ties. He also saw a large hole in the roof of one of the bedrooms through which freezing air, debris, and rain entered the cottage. This room was adjacent to a bathroom that, Lieutenant Richard noted, had a lock on the outside of the door, which could be used to lock the bathroom from the outside. The door between the room with the hole in the roof and the bathroom was jammed, so that it could not be entirely shut, but it also could not be opened any further. While there was a space heater in the bathroom, it was surrounded by trash such that, in Lieutenant Richard’s opinion, it could not have been used recently. The entire house was covered in dishes, pots, trash, plates of half-eaten food, clothing, and plastic twist ties, which, although cut, had originally been in a tiny, circular shape. In Lieutenant Richard’s opinion, it was around 30 degrees on the morning that the defendant called 9-1-1. Captain Tim Lentz, another officer involved in the investigation, testified that the weather service listed the temperature on the morning of December 18 as 28 degrees.

IfiDr. Michael V. DeFatta, the Chief Deputy Coroner of St. Tammany Parish, testified about Chantell’s autopsy. Despite her age, Chantell weighed only 25 pounds and was, according to Dr. DeFatta, very malnourished. He noted loop marks “pretty much all over her entire body,” which were in different stages of healing. Dr. DeFatta also found fresh, healing, and scarred abraded marks around Chantell’s wrists and ankles, indicating she had been bound numerous times. Dr. DeFatta noted that the victim had loop marks on the sides of her torso and defensive injuries on her arms that showed Chantell was tied up and unable to defend herself during some of the beatings. Dr. DeFatta testified the nature of the ligature injuries and scars showed Chantell struggled while tied up.

Chantell also had other bruises, scars, and lesions. She had bruised areas on her shoulder, pressure sores, and lacerations to her foot. She had bruising to her forehead, left side of the face, and the right side of the neck, with significant hemorrhage in the tissue underneath, indicating the wounds could not have been self-inflicted. A large portion of her hair was missing from her scalp and had been pulled out traumatically. Dr. DeFatta found areas of trauma or impact, revealed by hemorrhage, in the chest, back, and abdomen, some of which were hours old, some days old, and some weeks old. Chantell also had pneumonia.

According to Dr. DeFatta, hypothermia is caused by immersion in cold water or exposure to the elements that leads to a dropping of body temperature, arrhythmia, and then death. In his opinion, Chantell was unable to seek warmth because she was tied up, locked up, or incapacitated, or unconscious from head trauma. Dr. De-Fatta testified Chantell obviously was a battered child who was not being fed properly. As a result of the battered child syndrome and the malnutrition, she was predisposed, in Dr. DeFatta’s opinion, to die from the hypothermia because of her weakened condition and because of her inability to seek out warmth.

Kenisha Duncan testified on her own behalf. She testified that only her father would bind and abuse Chantell. She indicated that she “couldn’t count” the number of times her father had bound Chantell with plastic twist ties and made her stand in a |7corner. The defendant' acknowledged that she would whip her daughter for misbehavior and noted that her father would also “whoop” and discipline Chan-tell. She also testified she was aware there were a lot of marks on Chantell, that she was home almost all of the time, and that her father would discipline Chantell in the bedroom.

The defendant testified she initially lied to the police when she told them the story about sleeping in the big house. Instead, according to the defendant, she fell asleep on the sofa under a comforter while her daughter was sitting on the floor of the bedroom watching television and wearing a large sweatshirt. Her father woke her up the next morning and told her Chantell was freezing and they needed to call 9-1-1. Although the defendant initially testified Chantell was not tied up in the sweatshirt when the defendant fell asleep on the couch, she later admitted Chantell was tied up in the sweatshirt.

The defendant admitted that she originally told police she was the one who bound and beat her daughter because she wanted to protect her father; but later, after she was charged with murder, she decided to tell the truth. The defendant also noted that she moved away from her father two times to live with other relatives, when Chantell was younger, but voluntarily chose to move back in with her father and continue a sexual relationship with him.

Social worker Terrilynn Bowe testified during the State’s rebuttal. She indicated that she spoke with the defendant on December 19th after she had been arrested. The defendant admitted to her that she had told the police that she had gone to Mississippi, but that it was not true. Bowe testified the defendant told her that Chantell had always been a bad child and that she and her father had to tie Chan-tell’s hands and feet so she would stay in timeout. The defendant also told Bowe that her father had tried putting a belt around Chantell’s neck to restrain her, but that did not work so she or her father would place Chantell in an adult-sized shirt and tie the arms behind her back. Bowe testified the defendant also told her that she used a switch or belt to discipline Chantell and that she was aware her father used a looped electrical cord to whip Chantell. The defendant also told Bowe that Chantell was frequently placed tied-up in a corner of the | ^bedroom in a space formed by the edges of two dressers, sometimes while the defendant and her father were having sex in the same room.

ANALYSIS

I. Sufficiency of the Evidence

In her first assignment of error, the defendant asserts the evidence at trial was insufficient to show that she was the perpetrator of any abuse or neglect of her daughter. As such, the defendant argues the evidence at trial was insufficient to convict her of second degree murder. Specifically, the defendant argues the victim died from hypothermia and not from abuse or starvation and that there was no evidence to show it was the defendant who rendered the victim unconscious, locked her in a room, or tied her up so she could not reach an area of warmth that night.

The defendant was convicted of second degree murder in violation of La. R.S. 14:30.1. That statute provides, in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm.

Cruelty to juveniles is defined in La. R.S. 14:93(A) as the “intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.” The term “intentional” as used in La. R.S. 14:93 refers to general criminal intent to mistreat or neglect and does not require an intent to cause the child unjustifiable pain and suffering. State v. Morrison, 582 So.2d 295, 302 (La.App. 1 Cir.1991). “Mistreatment” as used in this statute is equated with “abuse.” State v. Comeaux, 319 So.2d 897, 899 (La.1975). Criminally negligent mistreatment or |9neglect of the juvenile occurs where there is such disregard of the interest of the juvenile that the defendant’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances. State v. Morrison, 582 So.2d at 302; La. R.S. 14:12.

Thus, in order for the State to prove the defendant was guilty of the second degree murder where the killing occurred during the perpetration of cruelty to a juvenile, it had to establish either that (1) the defendant intentionally mistreated or neglected Chantell, resulting in the infliction of unjustifiable pain or suffering, and, ultimately, death; or (2) that the defendant was criminally negligent in her mistreatment or neglect of Chantell, causing the infliction of unjustifiable pain or suffering, and finally, her death. The trial court also instructed the jury on the law concerning principals to a crime as follows: “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” La. R.S. 14:24. Thus, the jury had a basis for convicting the defendant even if they found she did not personally participate in the acts of cruelty to or neglect of Chanted that led to her weakened condition or that occurred on the night before her death.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court is governed by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court must determine the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince any rational trier of fact that all the elements of the crime and the defendant’s identity as the perpetrator of that crime had been proven beyond a reasonable doubt. State v. Harris, 97-0778 (La.3/4/98), 708 So.2d 387, 388.

“Circumstantial evidence consists of the proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.” State v. Porter, 99-1722, p. 15 (La.App. 3 Cir. 5/3/00), 761 So.2d 115, 123. When circumstantial evidence is used to prove the | mcomrnission of an offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” As noted by the supreme court in State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998), “[t]his is not a separate test to be applied when circumstantial evidence forms the basis of a conviction; all evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt.” In circumstantial evidence cases, this court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, this court, evaluating the evidence in the light most favorable to the prosecution, determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Porter, 99-1722 at 16, 761 So.2d at 123-24.

Moreover, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter goes to the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review, and the appellate court will not reweigh the evidence to overturn a fact finder’s determination of guilt. State v. Savario, 97-2614, pp. 7-8 (La.App. 1 Cir. 11/6/98), 721 So.2d 1084, 1089, writ denied, 98-3032 (La.4/1/99), 741 So.2d 1280; State v. Taylor, 97-2261, pp. 5-6 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932.

The defendant’s statements given after her daughter was taken to the hospital, as well as her testimony at trial, contained sufficient inconsistencies such that the jury could have determined that she was not credible. In any case, the defendant testified at trial that she was aware her father would tie up Chantell, that they both would “whip” Chanted, that she was aware of the marks on Chanted, and that her father would discipline Chanted in the bedroom. Detective Rickels testified the defendant told lnher she would tie Chantell’s wrists and ankles, make her stand in a corner, put a belt around her neck, and discipline her with a switch. Detective Rickels also testified the defendant told her she was aware her father would also punish Chantell. Lieutenant Richard testified the defendant showed him the toolbox where she and her father kept the plastic ties they used to tie up Chantell. Terrilynn Bowe testified the defendant had told her that she and her father would tie up Chantell’s hands and feet, that the defendant’s father had put a belt around Chantell’s neck to restrain her, that her father would tie Chantell up in an adult-sized sweatshirt, that she would beat Chantell with a switch, and that her father would whip Chantell with a looped electrical cord.

Dr. Benton testified Chantell suffered from starvation and that this contributed, along with the hypothermia, to multi-sys-tem organ failure. Dr. DeFatta testified that starvation and battered child syndrome caused Chantell to have a weakened condition that predisposed her to die from the hypothermia and, perhaps, caused her to be unable to seek out warmth because she was locked up, tied up, or unconscious due to head trauma or the starvation and child abuse.

Viewing the evidence in the light most favorable to the prosecution, it is clear that any rational trier of fact would have concluded the State proved beyond a reasonable doubt that the defendant either: (1) was personally responsible for or was principal to the intentional mistreatment or neglect of Chantell, causing her unjustifiable pain and suffering, resulting in her death, or (2) disregarded Chantell’s interests to such an extent that her conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under the circumstances, resulting in unjustifiable pain, suffering, and death to Chantell.

In her short life, this child, who turned four only several hours prior to her death, was repeatedly bound hand and foot, beaten numerous times with an electrical cord and other implements, and starved of food, love, and affection. According to the defendant’s own statements to others and at trial, Chantell suffered immensely at the .hands of the defendant, and at the hands of her grandfather, with the defendant’s consent, acquiescence, and participation. Chantell was emaciated and had recent 11 ¡Injuries, some of which the coroner found to be only hours old. We may never know if Chantell was unable to find a warm place in the cottage that night because she was tied up, locked in the bathroom, or incapacitated due to her physical condition or physical trauma caused by another. It was reasonable, however, given Chantell’s emaciated condition, which must have been caused by a lengthy period of starvation, the wounds to her body too numerous to count and in various stages of healing, and the defendant’s own testimony and statements to others that she participated and acquiesced in the abuse of Chantell, for the jury to conclude that Chantell’s death was a direct result of the defendant’s intentional abuse or criminal neglect of Chantell, resulting in her unjustifiable pain, suffering, and death.

This assignment of error lacks merit.

II. Motion to Quash

The original indictment charged the defendant with second degree murder of Chantell occurring on December 19, 2000. One month prior to trial, the State amended the indictment to provide that the crime took place “between 12/17/96 and 12/18/2000,” the dates of Chantell’s birth and death. The defendant filed a motion to quash the indictment or to strike the amendment. The defendant- argued below that the amendment could only have been made by a grand jury and that the State was attempting to evade the requirements of La. Code Evid. art. 404(B) and State v. Prieur, 277 So.2d 126 (La.1973) by improperly making prior acts of abuse an element of the crime charged. The trial court rejected those arguments, finding that the State could amend the indictment without return to a grand jury because the particular date of the offense was not an essential element of the crime. The court also implied that the incidents of prior abuse were “alleged acts” in the indictment and did not fall under the dictates of Prieur. The court further noted that the defendant had open file discovery and notice before trial of the “alleged acts” that would be at issue.

In brief to this court, the defendant argues the trial court erred in denying defendant’s motion to quash because the amendment allowed the State to introduce evidence of prior acts of abuse of Chantell by the defendant in violation of La.Code |13Evid. art. 404(B) and Prieur. The defendant fails to recognize, however, that Article 404(B)(l)’s limitations on the admissibility of “other crimes, wrongs, or acts” evidence applies exactly to that— other crimes, wrongs, or acts — and not to the crime charged. Indeed, relevant and probative evidence necessary to establish the elements of the crime charged is not rendered inadmissible because it also constitutes evidence of other criminal acts. State v. Anderson, 343 So.2d 135, 138 (La.1976). Furthermore, notice required under La.Code Evid. art. 404(B)(1) and under State v. Prieur is not mandated when the evidence relates to “conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La.Code Evid. art. 404(B)(1); State v. Prieur, 277 So.2d at 130 (“No such notice is required as to evidence of offenses which are a part of the res gestae ....”).

Herein, the defendant was charged with second degree murder in violation of La. R.S. 14:30.1. Under subsection (2)(b) of that statute, the State could attempt to prove the killing of Chantell took place while the defendant was engaged in (or a principal to) the perpetration of cruelty to juveniles, even though she had no intent to kill or inflict great bodily harm. Under La. R.S. 14:93(A), “cruelty to juveniles” is the intentional or criminally negligent mistreatment or neglect of a child whereby unjustifiable pain or suffering is caused to the child. In the instant case, the State’s position, supported by the testimony of Dr. DeFatta, was that years of abuse, mistreatment, and starvation by the defendant herself, or in concert with her father, cumulatively caused the victim’s weakened condition and left her especially susceptible to hypothermia. This conclusion was buttressed by the obvious fact that the defendant did not suffer any effects from hypothermia despite having slept in the same house as the victim on that cold night. As such, the individual acts of cruelty, neglect, and mistreatment are a necessary element of the crime charged as they were alleged to have contributed to the victim’s unnecessary death.

The trial court did not err in denying the defendant’s motion to quash the amendment to the indictment on these grounds. This assignment of error lacks merit.

CONVICTION AND SENTENCE AFFIRMED.

      . General criminal intent is “present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2).


author: JgCIACCIO, J.

text:
    Michael D. GUIDROZ v. CPST, INC.
    No. 2001 CA 1894.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.
    Kevin K. Gipson, New Orleans, Counsel for Plaintiff/Appellant Michael D. Guidroz.
    Lawrence B. Frieman, Metairie, Counsel for Defendant/Appellee CPST, Inc.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . The Honorable Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   JgCIACCIO, J.

Plaintiff Michael D. Guidroz appeals an Office of Workers’ Compensation (OWC) judgment dismissing his claim with prejudice.

FACTS

On August 21, 1998, while working as a garbage “hopper” for CPST, Inc., Michael Guidroz fell from the back of the truck injuring his lower back and legs. CPST referred Mr. Guidroz to Dr. Thomas R. Donner, who diagnosed a resolving muscular strain. Dr. Donner did not find that Mr. Guidroz’s injuries required any work restrictions. Mr. Guidroz then began seeing Dr. Stuart I. Phillips, who diagnosed a lumbar disc displacement and declared Mr. Guidroz totally and permanently disabled.

In January 2000, CPST terminated Mr. Guidroz’s workers’ compensation benefits even though Dr. Phillips recommended lumbar fusion surgery. In response, Mr. Guidroz filed a disputed claim for compensation form with OWC.

After a trial, the workers’ compensation judge found that the surgery recommended by Dr. Phillips was unnecessary and dismissed Mr. Guidroz’s claim for benefits. The court further held that CPST was entitled to a credit for overpayment of benefits to Mr. Guidroz in the amount of $2,178.56.

Mr. Guidroz now appeals, arguing that the trial court ex-red: 1) in finding that Mr. Guidroz was not entitled to the lumbar fusion surgery; 2) in finding that he was not entitled to either temporary total disability benefits or supplemental earnings benefits; and 3) in finding that CPST was entitled to a credit for overpayment of benefits to Mr. Guidroz.

LAW AND ARGUMENT

The workers’ compensation judge’s finding on whether a particular medical treatment is necessary is factual in nature and therefore subject to the manifest error/clearly wrong standard of review. The appellate court must determine not whether the trial court was right or wrong, but whether its conclusions were | ^reasonable. And if there are two permissible views of the evidence, the fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. So if the fact-finder’s conclusions are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that it would have weighed the evidence differently.

Assignment of Error Number 1

The workers’ compensation judge heard conflicting medical opinions about whether the lumbar fusion surgery was necessary. Mr. Guidroz’s treating physician, Dr. Phillips, wanted to perform the surgery. And Mr. Guidroz properly argues that the treating physician’s testimony should generally be given more weight than a physician who merely conducts an examination. But Dr. Donner, Mr. Gui-droz’s original treating physician, did not find that surgery was necessary. And Mr. Guidroz admitted at trial that he terminated his relationship with Dr. Donner specifically because he disagreed with Dr. Donner’s diagnosis. Dr. Daniel Trahant, Dr. Robert Steiner, and Dr. Claude Williams, who each examined Mr. Guidroz once, found no evidence of permanent injury and agreed with Dr. Donner that surgery was unnecessary. Accordingly, OWC’s conclusion that the lumbar fusion surgery was neither reasonable nor necessary cannot be manifestly erroneous. This assignment of error has no merit.

Assignment of Error Number 2

Likewise, the question of whether an employee is entitled to workers’ compensation benefits is ultimately a question of fact and the appellate court may not disturb the fact-finder’s resolution of that issue absent manifest error or unless it is clearly wrong.

LSA-R.S. 23:1221(l)(c) provides compensation for temporary total 14disability only if the employee proves by clear and convincing evidence that he is physically unable to engage in any employment or self-employment. And in order to receive supplemental earnings benefits, the injured employee must prove by a preponderance of the evidence that his work-related injury prevents him from earning at least 90% of the wages earned at the time of his injury. An employee who is released to return to work without restrictions can be presumed to be able to return to his former position.

' Mr. Guidroz testified at trial that continuing pain prevented him from working as a hopper. But he then admitted that he was able to paint, clean the house and perform general maintenance work. And again, only one of the five physicians who examined Mr. Guidroz declared him disabled. The workers’ compensation judge’s ruling indicates that when faced with conflicting views of the evidence, he gave greater weight to the medical opinions of Drs. Donner, Steiner, Williams, and Tra-hant. We cannot say that he was clearly wrong in his conclusion. This assignment of error is without merit.

Assignment of Error Number S

Finally, Mr. Guidroz contends that the trial court erred in finding that CPST was entitled to a credit for overpayment of benefits to Mr. Guidroz. An employer is entitled to a credit for overpayment of benefits, and the credit applies toward any future payments to that employee. After considering the evidence presented, we cannot say that the trial court abused its discretion in granting the credit to CPST. This assignment of error has no merit.

CONCLUSION

For these reasons, we affirm OWC’s judgment dismissing Mr. Guidroz’s workers’ compensation claim with prejudice. Costs of this appeal are assessed |Bto appellant, Michael Guidroz.

AFFIRMED.

      . Connolly v. Seeley Service Construction, 97-1620 (La.App. 1 Cir. 5/15/98), 712 So.2d 636, 639.

      . Weems v. Dixie Lion Warehouse & Cartige Co., 00-1536 (La.App. 1 Cir. 9/28/01), 809 So.2d 305, 308, writ denied, 01-2917 (La.1/25/02), 807 So.2d 839.

      . Id.

      . Savarino v. Blue Cross and Blue Shield of Louisiana, Inc., 98-0635 (La.App. 1 Cir. 4/1/99), 730 So.2d 1083, 1089.

      . Barber Bros. Contracting Co. v. Cuccia, 98-0675 (La.App. 1 Cir. 4/1/99), 734 So.2d 820, 823, writ denied, 99-1258 (La.6/18/99), 745 So.2d 31.

      . LSA-R.S. 23:1221(3); Scott v. Lakeview Regional Medical Center, 01-0538 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, 220-221.

      . Carter v. Winn Dixie Louisiana, Inc., 613 So.2d 686, 690 (La.App. 5 Cir.), writ denied, 617 So.2d 940 (1993).

      . LSA-R.S. 23:1206; Jackson v. Creger Automotive Co., Inc., 29,249 (La.App. 2 Cir. 4/2/97), 691 So.2d 824, 829, writ denied, 97-1436 (La.9/26/97), 701 So.2d 984.


author: 1,JAMES, J.

text:
    Tracy Mark KNIGHT v. William M. MAGEE, Magee & Devereux, Westport Insurance Corporation and Joseph Yazbeck.
    No. 2001 CA 2041.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.
    Robert H. Matthews, New Orleans, Counsel for Plaintiff-Appellant Tracy Mark Knight.
    David R. Paddison, Covington, Counsel for Defendant-Appellee Joseph Yazbeck.
    Before: PARRO, JAMES and PATTERSON, JJ.

      . Judge A. Clayton James, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

      . Michael A. Patterson is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   1,JAMES, J.

This is an appeal by the plaintiff from a trial court judgment dismissing, with prejudice, the plaintiffs claims against one of the defendants for failure to state a cause of action. For the reasons that follow, we affirm the judgment of the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, Tracy Mark Knight, filed this suit for damages against Joseph Yazbeck, William M. Magee, the law firm of Magee and Devereux, and Westport Insurance Company. According to the petition, Knight suffered damages from a malicious prosecution initiated against him in 1998. In 1999, Knight retained Magee and the law firm to represent him in an action for damages arising out of this malicious prosecution. Knight claims he subsequently discovered that Magee and the law firm had not filed the lawsuit on his behalf in a timely fashion and had, therefore, allowed the cause of action to prescribe.

The petition next states that Knight met with Yazbeck on January 27, 2000, to discuss the payments due on a promissory note held by Yazbeck. The note was secured by a mortgage on certain property owned by Knight and his wife. At this meeting, Knight advised Yazbeck that he and his wife had entered into an agreement to sell the property encumbered by this mortgage on or before March 1, 2000. Knight then requested an agreement from Yazbeck that he would forbear collection of sums due on the mortgage note until the act of sale took place. Knight alleges that Yazbeck orally agreed to this request.

Knight further alleges that on February 7, 2000, he notified Magee through another attorney that he intended to file a legal malpractice claim against Magee for Ma-gee’s failure to timely file Knight’s malicious prosecution clainijJ^ On that same day, Magee allegedly filed a petition for executory process on behalf of Yazbeck, seeking to foreclose on Knight’s property in accordance with the terms of the mortgage. Knight was served with a copy of this petition at the closing for the sale of the property. He claims that after receiving the notice of seizure, he was notified that approximately $10,000 of his proceeds from the sale would be applied to Magee’s legal fees for handling the foreclosure proceedings. After notification of these demands, Knight canceled the sale.

Knight subsequently commenced negotiations with Magee in an effort to allow the sale to proceed. In the course of these negotiations, Magee purportedly demanded that Knight execute an affidavit stating that he had no claim for legal malpractice against Magee and the law firm. Magee also allegedly demanded that Knight’s proceeds from the sale be applied to payment of an additional promissory note held by Magee. This note was not related to the foreclosure proceedings and was being litigated in a separate matter. Knight acknowledges that he consented to these terms but claims that this consent was vitiated by duress.

Finally, Knight alleges he ultimately learned that Yazbeck had initiated the foreclosure proceeding because Magee had prevailed upon him to do so. Knight further alleges that Magee wanted the proceedings commenced in order to recover his malpractice insurance deductible and monies due on the promissory note.

Yazbeck responded to the lawsuit against him by filing a peremptory exception pleading the objection of no cause of action, arguing that La. R.S. 6:1121-1123 prohibit a debtor from maintaining an action against a creditor based on an oral credit agreement. After a hearing, the trial court sustained the peremptory exception and dismissed Knight’s claims against Yazbeck with | ¿prejudice. This appeal by Knight followed.

DISCUSSION

The function of an exception pleading the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). The exception is triable on the face of the petition, and all well-pleaded allegations of fact must be accepted as true. A court should sustain the exception only if the law affords no remedy under any evidence that is admissible under the pleadings. Ultra Fabricators, Inc. v. MC Bank and Trust Company, 97-1947, p. 4 (La.App. 1st Cir.9/25/98), 724 So.2d 210, 212, writ denied, 98-2682 (La. 12/18/98), 732 So.2d 1238.

In reviewing a trial court’s ruling sustaining an exception raising the objection of no cause of action, the appellate court should subject the case to a de novo review. The exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987, p. 4 (La.11/29/01), 801 So.2d 346, 349. Any doubts are resolved in favor of the sufficiency of the petition. Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010, p. 5 (La.App. 1st Cir.3/27/97), 691 So.2d 751, 755, writ denied, 97-1066 (La.6/13/97), 695 So.2d 982. The question, therefore, is whether, in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692, p. 5 (La.App. 1st Cir.9/24/99), 754 So.2d 1057, 1060.

The issue in this appeal is whether Louisiana law allows a debtor to recover damages from a non-bank creditor based on an oral agreement by the creditor to forbear collection of sums due on a promissory note. Knight argues that his claim | fiagainst Yazbeck falls outside the scope of the Louisiana credit agreement statutes, La. R.S. 6:1121-1124, and is, therefore, not barred by its provisions.

The Louisiana credit agreement statutes, in effect provide a statute of frauds in actions based on credit agreements as defined in La. R.S. 6:1121(1). Ultra Fabricators, Inc., 97-1947 at p. 5, 724 So.2d at 213. The promise to forbear constitutes a “credit agreement,” which is defined by La. R.S. 6:1121(1) as “an agreement to lend or forbear repayment of money or goods or to otherwise extend credit, or make any other financial accommodation.”

La. R.S. 6:1122 provides that “[a] debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” Section 1122 thus precludes an action based on a credit agreement, including a promise to forbear, unless that agreement is in 'writing.

Knight does not claim that the forbearance agreement he allegedly had with Yaz-beck was in writing; nor does he dispute that the Louisiana credit agreement statute require credit agreements to be in writing. Instead, Knight argues that the Louisiana credit agreement statutes do not apply to the instant matter because Yaz-beck is not in the class of creditors the statutes were intended to cover.

Title 6 of the Louisiana Revised Statutes, in which the Louisiana credit agreement statutes are found, is entitled “BANKS AND BANKING.” Knight argues that this title indicates that the credit agreement statutes were only intended to apply to banks and other financial institutions. Because Yazbeck is a private individual and not a bank, Knight opines, the provisions of the Louisiana credit agreement statutes do not apply. Knight further argues that if the statutes are inapplicable, he should be able to rely on parol evidence to prove his forbearance agreement with Yazbeck. This argument misses the mark.

|fiLa. R.S. 6:1121(2) defines a “creditor” as a financial institution or any other type of creditor that extends credit or extends a financial accommodation under a credit agreement with a debtor. “Financial institution” is defined as a bank, savings and loan association, savings banks, or credit union authorized to transact business in this state. La. R.S. 6:1121(4). The definition of creditor is clearly not limited to banks or other financial institutions as it also includes any other type of creditor. Yazbeck undoubtedly fits within the definition of “any other creditor.”

Knight next argues in the alternative that he should be allowed an opportunity to amend his petition in order to state a cause of action such as fraud, conspiracy to injure, detrimental reliance, and/or promissory estoppel. In support of this argument, Knight relies on Diamond Services, Corp. v. Benoit, 99-0765 (La.App. 3d Cir.12/8/99), 757 So.2d 23, reversed on other grounds, 2000-0469 (La.2/21/01), 780 So.2d 367. In that case, the Third Circuit expressed concern that unsophisticated borrowers may not be protected by a strict enforcement of the Louisiana credit agreement statutes that would preclude all actions arising from oral credit agreements regardless of the theory of recovery asserted. Therefore, the Third Circuit allowed a defendant to assert a reconven-tional demand alleging fraud on the part of the plaintiff where that fraud arose out of an oral credit agreement. Knight argues that a similar result is required here.

However, Fleming Irrigation, Inc. v. Pioneer Bank & Trust Com., 27,262 (La.App.2d Cir.8/23/95), 661 So.2d 1035, writ denied, 95-2357 (La.12/8/95), 664 So.2d 427, the plaintiffs filed a lender liability action against a bank seeking damages arising out of an alleged oral agreement to lend money. The plaintiffs asserted that the Louisiana credit agreement statutes precluded causes of action based on breach of contract, but did not bar recovery under alternative theories such as fraudulent or tortious misrepresentation, negligence, promissory estoppel, or detrimental reliance. The Second Circuit disagreed and held that such |7suits were barred by the statutes and stressed that each of the alternative theories of recovery relied on the alleged oral promises. Therefore, the court determined that allowing recovery on theories other than breach of contract would “simply provide an easy avenue for resourceful attorneys to circumvent the statute,” thus defeating the legislature’s intent to bar claims against a lender for damages based on oral representations. Fleming Irrigation, Inc., 27,262 at p. 6, 661 So.2d at 1039. The First Circuit has previously stated its agreement with the Second Circuit on this issue in the matter of Guzzardo-Knight v. Central Progressive Bank, 99-1449 (La.App. 1st Cir.6/23/00), 762 So.2d 1243, writ denied, 2000-2298 (La.6/15/01), 793 So.2d 208.

In the matter before this court, the alleged failure of Yazbeck to honor the oral agreement to forbear is central to any theory of liability Knight could allege. Any cause of action Knight may have under the facts of this case can only have its genesis in the alleged oral agreement to forbear. To allow Knight to recover damages based on these other legal theories, where the breach of the creditor’s oral promise to forbear forms the very basis of those alternative legal theories, would render the statutes meaningless. See Guzzardo-Knight, 99-1449 at p. 7, 762 So.2d at 1247. Because the Louisiana credit agreement statutes bar any cause of action arising out of the oral agreement to forbear Knight may have against Yazbeck, there is nothing to be gained by allowing Knight to amend his petition to state a cause of action against Yazbeck under these facts.

^CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court dismissing the claims of Tracy Mark Knight against Joseph Yazbeck with prejudice. All costs of this appeal are assessed to the plaintiff-appellant, Tracy Mark Knight.

AFFIRMED.

      . Because the trial court decided this matter pursuant to a peremptory exception pleading the objection of no cause of action, the only facts before this court are those alleged in plaintiffs petition.

      . Knight and his wife subsequently divorced, and she is not a party to these proceedings.

      .Knight and his wife were separated at the time the act of sale was to take place. Knight alleges in the petition that only his share of the proceeds were subject to these demands by Magee.

      . Yazbeck also filed a dilatory exception of vagueness. The trial court did not rule on that exception, and it is not before this court.

      . The Louisiana Supreme Court declined to adopt the blanket rule of Fleming Irrigation, Inc. in the case of Whitney National Bank v. Rockwell, 94-3049, p. 13 (La. 10/16/95), 661 So.2d 1325, 1332, n. 6, choosing instead to confine its holding to the claim before it.