author: | MAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Louis WALTON.
    No. 2003-KA-1968.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 2004.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Battle Bell IV, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO JR.).
   | MAMES F. McKAY III, Judge.

STATEMENT OF CASE

On August 15, 2002, the State indicted Louis Walton with one count of aggravated rape (count one) and two counts of indecent behavior with a juvenile (counts two and three), violations of La. R.S. 14:42 and 14:81, respectively. Walton pled not guilty at his arraignment on August 20, 2002. On December 16, 2002, the trial court denied Walton’s motions to suppress. On March 27, 2003, the jury convicted Walton of one count of sexual battery (count one) and one count of attempted indecent behavior with a juvenile (count two). On April 3, 2003, the State multiple billed Walton charging him as a fourth felony offender. On July 9, 2003, the court, as to count one, ad judged Walton a third felony offender, and sentenced him on count one to twelve years, with credit for time served, and on count two, to a consecutive sentence of seven years, with credit for time served. Also on that date, the court granted Walton’s motion for appeal. On July 11, 2003, the court vacated Walton’s original sentence on count two, and re-sentenced him on that count to a consecutive sentence of three and one-half years, with credit for time served.

STATEMENT OF FACT

lain the early morning hours of June 13, 2002, New Orleans Police Department (NOPD) Officer Carlos Peralta and his partner responded to a radio dispatch call concerning the rape of a juvenile at 1322 Annette Street. When Officer Peralta arrived on the scene, he saw the defendant standing in the middle of the street. Officer Peralta noticed three juvenile females, M. R., P. R., J. R., their mother, A. R., and her friend Felicia Williams. A.R. and Ms. Williams were very upset and verbally confronting the defendant, who appeared nervous and scared. Officer Peralta’s partner handcuffed the defendant and placed him in the patrol unit, while Officer Peralta interviewed the children and adult females separately. Officer Peralta learned from A.R. that Ms. Williams arranged for a babysitter for the children at Ms. Williams’ residence on Annette Street, while A.R. and Ms. Williams went to a neighborhood bar.

A.R. testified that she took her three daughters and son to the house at about 10:30 p.m. on June 12, 2002. A.R. said that while she and Ms. Williams were out, the defendant exposed himself to her daughters, raped M.R. and demanded oral sex from P.R. After speaking with the witnesses, Officer Peralta radioed for investigation assistance.

Detective Vernon Haynes of the NOPD Child Abuse Unit responded to Officer Peralta’s call. Detective Haynes observed the defendant sitting in the rear of the police unit. When Detective Haynes approached the defendant, he noted that the defendant smelled of alcohol, and appeared to be “very intoxicated”. Detective Haynes conferred with Officer Peralta, who briefed Detective Haynes on the facts of his investigation. Detective Haynes transported the victims and their mother to University Hospital. At the hospital, the victims related to Detective Haynes the night’s events. The medical staff at the hospital examined M. R., and | ¡¡completed a rape examination kit, which Detective Haynes later filed with the NOPD central evidence and property room. Detective Haynes then accompanied M. R., P.R. and J.R. to the Child Advocacy Center, where the three children gave audio and video recorded statements explaining what the defendant had done to them. The statements given by the children at the Advocacy Center corroborated the statements they made to Detective Haynes at the hospital.

A.R. told Detective Haynes that she and Felicia Williams, the defendant’s girlfriend, agreed to go to a neighborhood bar that night. Ms. Williams arranged to have a babysitter at her house for A. R.’s three daughters, eleven-year-old M. R., eight-year-old P.R. and four-year-old J.R. When A.R. and her daughters arrived at the residence, the defendant was not there. A.R. and Ms. Williams left the house about 10:30 p.m. The children watched television in Ms. Williams’ bedroom while their mother was out. The women returned to the house about 2:00 a.m.; however, they could not enter the house because the defendant had bolted the side door. Ms. Williams called to the defendant to unlock the door, which he did. As the women entered the house, A.R. saw the defendant clothed in a white t-shirt, and wrapped in the curtain/sheet, which was hanging on the doorway of the bedroom where the children were. The children ran to A.R. and Ms. Williams and reported what the defendant had done. M.R. told her mother that the defendant exposed himself to the children, and then vaginally and anally raped her in his bed and on the sofa in the living room. P.R. said that the defendant tried to lure her into his room. J.R. reported that the defendant asked her for oral sex.

|4Petective Haynes reported that on the night of the incident, Ms. Williams said she had arranged to have Ashley Ramee watch A. R.’s children at Ms. Williams’ house while the women went clubbing. Ms. Williams met the defendant in a neighborhood bar, and told him the children were in the house. Ms. Williams and A.R. returned home to find the defendant hiding his bottom torso behind a curtain. The defendant explained to Ms. Williams that he had just taken a shower, and that the women surprised him as he exited the bathroom. He covered himself with the curtain so as not to disrespect A. R.

Emergency room pediatrician, Dr. Diane Kirby, examined M. R., in the early morning hours of June 13, 2002. Dr. Kirby’s visual examination of M. R.’s genital area revealed that M. R.’s hymen had been perforated, and that she suffered a vulva abrasion. Dr. Kirby deemed M. R.’s injuries consistent with M. R.’s report that the defendant penetrated her vaginally and rectally with his penis.

Pursuant to Dr. Kirby’s findings, Detective Haynes arrested the defendant two or three days after the incident. The defendant waived his rights, and gave a statement in which he told Detective Haynes he was not aware the children were in the house because he left prior to their arrival. The defendant stated that he left the house to go clubbing. He returned home at about midnight and took a shower. He had a t-shirt and shorts on when he exited the bathroom. At that time he saw the children for the first time, and they saw him. The defendant denied harming the children in any way.

M.R. testified that after her mother and Ms. Williams left the house, she, P.R. and J.R. watched television in Ms. Williams’ bedroom. M.R. fell asleep. She awoke to feel the defendant stroking her buttocks. The defendant led her by her arm into his bedroom, locked the door, and removed his underwear and hers. He |splaced her on his bed, and penetrated her vaginally. Next, he took her to the living room where he raped her again. After the attack, M.R. ran back to her sisters and told them what happened. She warned them not to go with the defendant. Shortly thereafter, the defendant called for J.R. to come to him in the living room. When he got no reply, he went to the children. He was nude from the waist down. He asked P.R. to go to his bedroom, but she refused. Next, the defendant lured J.R. away from her sisters by telling her that he had candy for her. When A.R. and Ms. Williams returned home, they could not enter the house by the side door because it was bolted. As A.R. entered the house M.R. told her mother what the defendant had done.

P.R. testified that she fell asleep watching television with her sisters in Ms. Williams’ bedroom. She woke up when M.R. came into the bedroom crying. M.R. said the defendant had done something to her, and told the others not to leave the bedroom. The defendant walked into the bedroom; he was nude from the waist down. He told P.R. to come with him because her mother wanted to speak to her. P.R. refused to leave her sisters.

J.R. testified that the defendant told her he would give her some candy if she would accompany him to the front of the house. J.R. went with the defendant. The defendant held J. R.’s head and pulled it toward his genitals. He “tried to make [J.R.] suck his thing where he use it.” J.R. escaped from the defendant and ran to her sisters.

Byron Walton, the defendant’s brother, testified that he and his brother went clubbing on the night of June 12-13, 2002. He returned home at midnight to find the house dark. There were no lights on in Ms. Williams’ bedroom. Byron said he secured the house by bolting the side door. Shortly after he got home, the | (¡defendant entered the house by the front door and the two spoke briefly. Byron noticed that the defendant was intoxicated. The defendant then retired to his room. Byron went upstairs to his bedroom. About fifteen or twenty minutes later, Byron heard Ms. Williams enter the house. She called him to come downstairs, and told him that A.R. was calling the police because M.R. said that the defendant “fondled” the children. Byron denied hearing any noises or disturbances in the house from the time the defendant entered the house until Ms. Williams came home.

Ashley Ramee also testified for the defense. She told the jury that she and Byron Walton had a child together, and that she was sleeping in the upstairs bedroom of the Annette Street residence on the night in question. She denied knowing that the children were in the house, and further stated that she heard nothing out of the ordinary that night.

The defense read Ms. Williams’ testimony which was taken earlier for perpetuation at trial. Ms. Williams’ testimony indicates that at about midnight, she called the defendant on his cell phone to tell him that A. R.’s children were at the Annette Street resident. When she and A.R. returned home, the defendant was clothed when he opened the side door for them. He retired to his room and she went into her bedroom, to check on the children. None of the children was upset or crying. M.R. told her that the defendant had touched her. Ms. Williams spoke to the defendant about what M.R. said. The defendant denied touching the children. The defendant’s uncle, brother and his brother’s girlfriend were in the house that night. None of them heard any sounds from the children. A.R. and her children left the house to call the police, even though Ms. Williams offered them 17the use of her cell phone. The children were not crying or upset until after their mother called the police.

The defendant testified. He stated that he and his brother left their house about 8:00 p.m. to visit a neighborhood bar on the night of June 12, 2002. He spoke to Ms. Williams and A.R. at the bar and then left to visit another bar. He got home about 3:00 a.m. and entered through the front door. He called to his brother, who was eating in the kitchen. The defendant walked to the back of the house to check on his godchild, and encountered A. R.’s children for the first time. He was surprised to see the children because he was unaware they were there. He walked back to his bedroom in the front of the house, undressed and got into bed. About ten minutes later, he heard knocking at the side door. He put on some clothes and unbolted the door for Ms. Williams, who was alone. He returned to his bed. About ten minutes later Ms. Williams called him and told him A.R. accused him of touching her children. He denied the accusation to A.R. He offered her the use of his cell phone to call the police; A.R. used a payphone instead. The first officers on the scene placed him in their patrol unit, but later released him, advising him not to go near the children. The defendant denied interacting with the children in any way, and emphatically denied taking a bath while the children were in the house. The defendant did not hear of the rape allegation until after his arrest.

ERRORS PATENT

A review for errors patent on the record reveals one.

The record of the proceedings in the trial court does not indicate that the trial judge told the defendant at sentencing that, pursuant to La.R.S. 14:43.1(C), he is not eligible for parole, probation, or suspension of sentence. La.R.S. 14:43.1(0) |srequires that a defendant’s sentence under the sexual battery statute shall contain such restrictions.

La. R.S. 15:301.1(A) provides as follows: When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

In State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court held that where statutory restrictions, such as those enumerated in La.R.S. 14:43.1(C), are not recited at sentencing, those restrictions are deemed to be contained in the sentence by operation of La.R.S. 15:301.1(A). The Supreme Court determined that La.R.S. 15:301.1(A) “self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.” Williams, 800 So.2d at 799. Pursuant the Louisiana Supreme Court’s decision in Williams, the trial judge’s failure to specify that the defendant’s sentence was subject to the restrictions listed in La.R.S. 14:43.1(C) does not require remand for correction; instead, the judge’s sentence is deemed to include those restrictions by operation of law. Accordingly, any such error requires no action by this Court.

ASSIGNMENT OF ERROR NUMBER 1

In the first of two assignments, the defendant complains the trial judge violated his Sixth Amendment right of confrontation. Specifically, he argues that |nhe should have been allowed to present evidence to refute the State’s claim that M.R. had no prior sexual contact.

C.E. art. 412 provides that before a person accused of committing a crime that involves sexually assaultive behavior may offer evidence of the victim’s past sexual behavior, the accused shall make a written motion to offer such evidence, accompanied by a written statement of evidence setting forth the names and addresses of persons to be called as witnesses. C.E. art. 412(C)(1). The motion shall be made within the time for filing pre-trial motions specified in C.Cr.P. art. 521, except that the trial court may allow the motion to be made at a later date. C.E. art. 412(D). After the motion is filed, the trial court determines the admissibility of the evidence at a hearing. C.E. art. 412(E).

In this case, there is no evidence in the record that the defendant complied with those requirements. Nevertheless, defendant was not prejudiced by the restriction because defense counsel succeeded in eliciting testimony from Ms. Adrienne Denson, an investigator with the Public Defender’s Office, that she learned from A.R. during an interview that “[M. R.] had been tampered with by her cousin.” Moreover, replying to cross-examination, A.R. acknowledged to defense counsel that this was the first [sexual] incident M.R. had reported to her “[a]s far as with a grown man ...

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

In the second assignment of error on appeal, the defendant asserts that his sentence is unconstitutionally excessive. He frames his excessiveness argument in terms of the trial judge imposing the maximum sentence on one count, a lengthy h (¡sentence on the other count, without providing any factors to support the sentence, and by requiring that the sentences be served consecutively.

In this case, the defendant was charged with one count of aggravated rape and two counts of indecent behavior with a juvenile; however, the jury convicted him of the lesser offense of sexual battery (La. R.S. 14:43.1) on count one and attempted indecent behavior with a juvenile (La. R.S. 14:81) on count two, and acquitted him on count three. The court sentenced the defendant to twelve years on the sexual battery charge and three and one-half years for attempted indecent behavior with a juvenile, the sentences to be served consecutively. The maximum sentence for count one is twenty years. See La. R.S. 15:529.1. The maximum sentence on count two as the attempted indecent behavior with a juvenile is three and one half years and/or a fine of not more than $2,500.00.

The standard of review for Louisiana appellate courts in determining whether a sentence levied upon a particular defendant was excessive is the manifest-abuse-of-discretion standard. State v. Guzman, 99-1753, 99-1528 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable latitude in imposing sentences within the constraints provided by law. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330. However, in State v. Marshall, 81-3115, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the Louisiana Supreme Court held that “[a] sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762 (La.1979). Furthermore, under Louisiana law, a sentence is unconstitutionally excessive if it “makes no measurable contribution to acceptable goals of punishment” and hence is “nothing more than the purposeful imposition of pain and suffering; and is grossly out of proportion to the severity of the crime.” State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37, citing State v. Dorthey, 623 So.2d 1276 (La.1993). The Louisiana Supreme Court has provided a list of several factors that appellate courts are to consider in ascertaining whether a sentence, by its excessive duration or severity, is grossly disproportionate to the underlying offense. State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, citing State v. Telsee, 425 So.2d 1251, 1253-54 (La.1983). The appellate court’s analysis of the sentence is cumulative and centers on an amalgam of relevant factors. Id. Among these factors the Supreme Court notes, are “the nature of the offense and the offender, a comparison of the punishment with sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment provided for this crime in other jurisdictions.” Baxley, 656 So.2d at 980, citing Telsee, 425 So.2d at 1253-54.

Even though Louisiana law favors concurrent sentences, a trial court retains the discretion to impose consecutive sentences on the basis of other factors, including the offender’s past criminality, violence in the charged crimes, or the risk that the defendant poses to the general safety of the community. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49. When consecutive sentences are imposed for crimes arising out of the same act, the trial court must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1; State v. Dempsey, 2002-1867 (La. App. 4 Cir. 4/2/03), 844 So.2d 1037. Consecutive sentences for crimes arising out of the same act are not per se excessive if other appropriate factors are considered. Id.

The heinous nature of the offenses in this case is apparent. According to the record, the defendant exposed himself to the victims. He was intimate and cruel to |12M. R., to the extent of attempting intercourse, not once but twice. He was equally cruel to J.R. by holding and pulling the child’s head to his genital area, and demanding that she perform fellatio on him. The victims’ ages, eleven and four, respectively, make this offense even more grievous. They undoubtedly will suffer repercussions from the defendant’s reprehensible conduct for years to come. Considering the nature of the offenses, and the trauma and pain experienced by the victims, twelve years of imprisonment as a third felony offender for committing sexual battery upon an eleven-year-old female, and three and one-half years, without a fine, for attempted indecent behavior with a four-year-old is not unreasonable punishment; nor is it an example of needless imposition of pain. Moreover, the sentences are not grossly disproportionate to the severity of the offenses, and do not evince a manifest abuse of discretion on the part of the trial judge. See State v. DeLaughter, 29,974 (La.App. 2 Cir. 12/10/97), 703 So.2d 1364 (sentence of seven years for indecent behavior with juvenile and sentence of three years for attempted indecent behavior with juvenile were not excessive even though defendant was first-time felony offender, had diminished mental capacity and was physically disabled); State v. Taylor, 95-179 (La.App. 3 Cir. 10/4/95), 663 So.2d 336 (consecutive sentences of eight years for sexual battery and three years for attempted indecent behavior with juvenile were not excessive for first felony offender); State v. Hubb, 97-304 (La.App. 5 Cir.9/30/97), 700 So.2d 1103, (six and one half and seven year sentences were not constitutionally excessive for two defendants who had pled guilty to sexual battery; defendants “french” kissed both victims on several occasions; one defendant exposed his genitals to both children and forced one of the children to fondle him; the other defendant attempted to make one of the children fondle him, and showed the other child photographs of |13nude women; one of the defendants had no criminal history and the other had only misdemeanor offenses).

Nor do the defendant’s arguments that the trial judge’s failure to provide factors to support the sentence, and reasons for ordering that the sentences be served consecutively, show the court violated the principles against excessive punishment.

The defendant in this case addressed the trial judge at sentencing and requested that he be shown leniency because he was the father of two children, who needed his care and guidance. The judge’s response to the defendant’s request clearly indicates the court imposed the sentence it did for sound reasons. The court considered that the defendant’s conduct manifested deliberate cruelty to the victims, and that the defendant knew the victims were particularly vulnerable because of their age. Moreover, the judge clearly indicated he felt the defendant required a custodial environment because of the likelihood he would re-offend if given access to children again. Thus the trial judge did comply with the guidelines of La.C.Cr.P. art. 894.1. This assignment is without merit.

Accordingly, we affirm the convictions and sentences.

AFFIRMED.

      . The State and the defense stipulated that the samples in the rape kit tested negative for seminal fluid.


source: Caselaw Access Project

author: | ;>Judge Pro Tempore MOON LANDRIEU.

license: Public Domain

text:
    Onyx P. GARNER, Jr., M.D. v. MEMORIAL MEDICAL CENTER, Tenet Louisiana Healthcare System, Mercy Campus and the City of New Orleans.
    No. 2003-CA-2015.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 2004.

      Vincent Glorioso, III, Maria B. Glorioso, The Glorioso Law Firm, New Orleans, LA, for PlaintiffAppellant.
    C. William Bradley, Jr., J. Don Kelly, Jr., Lemle & Kelleher, L.L.P., New Orleans, LA, for Appellee Tenet Health System Memorial Medical Center Inc. d/b/a Memorial Medical Center Mercy Campus.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS JR. and Judge Pro Tempore MOON LANDRIEU).
   | ;>Judge Pro Tempore MOON LANDRIEU.

Plaintiff, Onyx P. Garner, Jr. M.D. (hereinafter “Dr. Garner”), appeals the trial court’s grant of summary judgment in favor of defendants, Tenet Health System Memorial Medical Center, Inc. and Memorial Medical Center-Mercy Campus (hereinafter “MMC”).

For the following reasons, we affirm the judgment of the trial court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

Dr. Garner is a plastic and reconstructive surgeon practicing in New Orleans with staff privileges at MMC. On May 13, 1999, Dr. Garner left MMC and was heading toward his vehicle when he sustained serious injuries in a fall. Dr. Garner’s vehicle was parked across Bienville Street from MMC in a lot provided by MMC as a courtesy to their physicians. Physicians were not required to park in this lot, as other parking options were available, i.e. free valet service offered to physicians or parking on the street. At the time of the accident, Dr. Garner crossed the two westbound lanes of Bienville Street, stopped on the median, and then began crossing the eastbound lanes of Bienville Street when he tripped on a slightly raised section of concrete in the street.

|sDr. Garner testified that when he exited the hospital ramp, he did not cross the street at the point where he normally crossed due to some shrubbery he thought had been recently planted in that area. Instead, Dr. Garner crossed the street a few feet over from his usual path to the parking lot. There was no designated crosswalk where Dr. Garner usually crossed or where he crossed on the day of the accident. Dr. Garner admitted that he chose not to use the closest crosswalk, which was located approximately 100 feet away, at the corner of Bienville Street and Jefferson Davis Parkway.

Dr. Garner filed a petition for damages on May 12, 2000 against MMC and the City of New Orleans. On April 4, 2003, MMC filed a motion for summary judgment. Judgment was granted on July 14, 2003, dismissing MMC with prejudice. This timely appeal followed.

DISCUSSION:

Dr. Garner submits that summary judgment is inappropriate in this case because genuine issues of material fact exist as to MMC’s negligence. Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Potter v. First Federal Sav. and Loan Ass’n of Scotlandville, 615 So.2d 318, 325 (La.1993); Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Because the mover has the burden of establishing that no material factual issue exists, inferences to be |4drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Potter, 615 So.2d at 325; Schroeder, 591 So.2d at 345.

Jurisprudentially, a landowner is not usually held liable for injuries that occur from defects on adjacent property except when the defect is caused or created by the adjacent property owner. Ehrman v. Holiday Inns, Inc., 94-0312 (La. App. 4 Cir. 3/29/95), 653 So.2d 732; Hartman v. Applewhite, 94-2630 (La.App. 4 Cir. 11/16/95), 665 So.2d 103. It is also recognized, however, that a particular defendant cannot escape liability by the mere fact of his status as a non-owner. Toups v. Rainbow Oldsmobile Co., Inc., 538 So.2d 695 (La.App. 5th Cir.1989). The question is whether the defendant was negligent in any manner. In order to make that determination, the duty-risk analysis must be employed which requires an examination of four factors: 1) whether the defendant’s conduct was a cause in fact of the accident; 2) whether the defendant owed a legal duty encompassing the particular risk of harm to which the plaintiff was exposed; 3) whether the defendant breached that duty; and 4) what damages the plaintiff sustained. Forest v. State, Through Louisiana Dept. of Transp. and Development, 493 So.2d 563, 569 (La.1986); Jones v. Gillen, 504 So.2d 575, 579-80 (La.App. 5 Cir.1987).

It is uncontroverted that Dr. Garner fell on a public street. In George v. Western Auto Supply Co., Inc., 527 So.2d 428 (La. App. 4th Cir.1988), this court addressed the duty owed by a business establishment to its invitee who was injured on the adjacent curb/sidewalk. We held that the adjoining property owner had: 1) no duty to notify the city of defects in the sidewalk; 2) no duty to warn the plaintiff of defects in the sidewalk; and 3) no duty to maintain a safe entrance/exit to its | sstore that extended to the city sidewalk in front of the store. See also, Monteleon v. City of New Orleans, 617 So.2d 49, 50 (La.App. 4th Cir.1993). In George, we reiterated our holding in Carpenter v. State Farm Fire and Cas. Co., 411 So.2d 1206, 1211 (La.App. 4th Cir.1982), that the only duty a property owner bears is to refrain from doing anything on or to the sidewalk which would cause or contribute to a vice or defect.

In the present case, Dr. Garner’s accident happened on a public street and was caused by a condition that MMC did not create or contribute to. Dr. Garner testified in his deposition that as he was taking his first or second step down off the raised median, he heard the sound of a car engine to his right. As he looked up to see if a car was coming toward him, his foot was caught on a fixed piece of concrete in the street, causing him to fall. Even if as alleged, Dr. Garner took an alternate route across the street due to recent landscape changes, we find that to be too remote from Dr. Garner’s fall to be the legal cause.

After analyzing the facts of this case under the duty-risk analysis, we do not find any basis upon which to find MMC negligent. Further, after a thorough review of the record, we find no material issues of fact.

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

AFFIRMED.


author: | PATRICIA RIVET MURRAY, Judge.

text:
    Alfred E. BRANDON v. LOCKHEED MARTIN CORP.
    No. 2003-CA-1917.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 2004.

      Alfred E. Brandon, Jr., New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    J. Jerome Burden, Peter G. Wright, Baton Rouge, LA, for Defendant/Appellee (Louisiana Department of Labor).
    Barbara Ryniker Evans, Anne E. Ben-dernagel, Evans & Associates, New Orleans, LA, for Defendant/Appellee (Lockheed Martin Corporation).
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   | PATRICIA RIVET MURRAY, Judge.

This is an unemployment compensation case. The plaintiff, Alfred Brandon, appeals the judgment of the trial court affirming the decision of the Board of Review of the Office of Regulatory Services disqualifying him from unemployment compensation benefits. Finding no disqualifying misconduct, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Brandon was employed full-time by Lockheed Martin Corporation for twenty-one years, spanning from November 17, 1977 to September 21, 1998. On September 21, 1998, he was discharged for two recent incidents of alleged employee misconduct: (i) sleeping on the job on Wednesday, September 16, 1998; and (ii) taking an unauthorized, extended lunch break on Friday, September 18, 1998. At the time of his discharge, Mr. Brandon’s was employed as a production control processor, and his rate of pay was $16.58 per hour. He worked the second shift, which was from 3:30 p.m. to midnight on Monday through Thursday, and from 2:00 p.m. to 11:00 p.m. on Friday.

| ?Tbe reason for discharge listed on Mr. Brandon’s separation notice was “violation of prior disciplinary action agreement concerning future conduct.” The record reflects that the prior disciplinary action agreement was dated January 13, 1998, and read as follows:

“On December 22, 1997, at approximately 8:40 P.M. you were caught sitting down watching “Monday Night Football” on television during your scheduled work hours.
The main gate into the stockroom area, which is normally open, was chain locked from the inside. The south lunchroom door was also locked. The only means to enter was by knocking on the locked lunchroom door or by key through the receiving office area, and walk around to the north lunchroom door.
This is a very serious violation of company rules which forbid leaving your work area without authorization, idling/loafing by watching television during working hours and the use of government/company equipment for other than official business. Normally, discipline for this offense is discharge. However, the company is willing, on a non-precedent setting basis, to reduce the discharge to a thirty (30) work day suspension without pay commencing January 13, 1998. You will return to work at the start of your regular scheduled shift, February 26, 1998. Any future same or similar act(s) will result in your immediate discharge.” (Emphasis supplied).

Mr. Brandon subsequently filed a claim for unemployment compensation benefits. On November 19, 1998, the Department of Labor notified Mr. Brandon that he was disqualified from receiving benefits pursuant to La. R.S. 23:1601(2) because of his “failure to abide by company rules/policies.” The notice further stated that he was aware of those rules or policies and that his discharge was for misconduct connected with the employment. On November 23, 1998, Mr. Brandon requested an appeal.

On December 8, 1998, a hearing was held before an administrative law judge (“ALJ”). At that hearing, Mr. Brandon appeared and was represented by a union representative, Bennie McCormick. Mr. Brandon also was accompanied by |3a coworker, Donna White, who testified on his behalf. Lockheed Martin was represented at the hearing by Wesley Bayas, Employee Labor Relations representative, and Lucius Ledet, Second Shift Superintendent. Mr. Ledet was the person who filed the complaint regarding the September 18th extended lunch break incident. At the hearing, he testified regarding that incident. Susan Barbay, Production Operations Supervisor, was the person who filed the complaint regarding the September 16th sleeping incident; however, she did not attend the December 8th hearing. Instead, her e-mail, dated December 7, 1998, addressed to Mr. Bayas was produced. Her e-mail stated that she would not be able to attend the hearing on the next day because she had to attend the funeral of a close family member at the same time as the scheduled hearing. The e-mail further stated that she could be reached by phone or pager later that day if needed. The email still farther stated that she had spoken with Mr. Ledet and that he had informed her that he would be available to represent production operations at the hearing.

Also produced at the hearing was Ms. Barbay’s written statement dated September 16th regarding the sleeping incident, which stated:

At approximately 1830 hr., on Wednesday, Sept. 16, 1998, I observed an electric scooter, assigned for exclusive use of D/368X employees unsecured and abandoned in the aisle outside SCC1 office area, Bldg. 103/H7. This scooter is used by Alfred Brandon on 2nd shift.
I went inside the closest office and called out for Alfred, but an unknown individual responded, “Alfred’s not in here”. I drove the scooter back to LCC# 4, Bldg. 103/E7.
When I arrived, the LCC gate was open. I entered the LCC. Alfred was not immediately visible. He was not at his desk, but sitting at his co-worker’s desk which has a desk organizer that blocks another 18 inches of viewing from the aisle or LCC entry.
His right arm was folded under his head. His eyes were closed. I stood at the edge of the desk and in a normal tone said, “Alfred”. With no response, I spoke a little louder. “Alfred”. Again, no | response. I was carrying a bottle of chilled water, so I nudged his left arm with it and said, “Excuse me, Alfred?”
When he woke up, his eyes glared at me as in a state of confusion. It was obvious that he had been sound asleep.
The purpose for my being in the area was to discuss the scooter incident. As the conversation progressed, he became argumentative and I realized that any mention of the sleeping issue would be to no avail.
I left the area and went to my office. I informed department management of the incidents and requested that Industrial Relations be notified.

On December 9, 1998, the ALJ rendered a decision in favor of Mr. Brandon, reversing and removing the Agency’s determination that he was disqualified. In its opinion, the ALJ stated:

[T]he claimant was discharged from the employment for two incidents, one of which alleged that he was sleeping at work and the other incident was returning to work late after his lunch break. The employer has not substantiated with firsthand testimony that the claimant was sleeping at work, and the claimant denied doing so. The facts presented, primarily through the claimant’s witness, show that the claimant was briefly late returning from his lunch break. However, the facts presented do not substantiate that it was anything other than an unintentional oversight on the part of the claimant. Such an oversight does not substantiate a charge of misconduct connected with the employment. Therefore, the claimant should not be disqualified.

On December 17, 1998, Lockheed Martin filed an appeal with the Office of Regulatory Services (the “Board of Review”). Lockheed Martin argued that it should be afforded another hearing to allow Ms. Bar-bay to testify. On February 5, 1999, the Board of Review issued an opinion remanding the matter for a new ALJ hearing. In so doing, the Board of Review stated:

Ms. Sue Barbay, key witness for the employer, was unable to attend the [December 8, 1998] hearing due to the funeral of a close family member. The Administrative Law Judge did note her absence for the record during the hearing. Although the employer did not request a postponement or continuance at the time of the hearing, the employer,
|Bin their letter of appeal to the Board, requested another hearing to give Ms. Barbay an opportunity to testify. The Board finds that due process warrants giving the employer the benefit of the doubt related to this matter. The hearing will be remanded to allow the employer’s witness to testify.

The Board of Review also noted that “[i]t is imperative that the parties involved resubmit all evidence and give testimony at the remand hearing so that the record can be properly established.”

On March 1, 1999, the remand hearing was held before the ALJ. At the outset, the ALJ expressly noted for the record that “we’re starting all over as if that other — that prior hearing had not — had never even occurred.” At that hearing, Mr. Brandon was again represented by Mr. McCormick. Lockheed Martin was again represented by Mr. Bayas. Also attending and testifying on behalf of Lockheed Martin was Ms. Barbay. At this hearing, however, Mr. Ledet was not present; he was working out of town.

On March 2, 1999, the ALJ rendered its decision finding Mr. Brandon was disqualified from receiving unemployment compensation. Summarized, the ALJ’s factual findings were as follows:

• Mr. Brandon was issued a disciplinary warning and suspended for thirty days after being accused of watching television during his scheduled work hours on December 22, 1997. He also was warned that any future similar acts would result in his immediate discharge. Although he appealed his suspension through the Employee-Union Management Agreement, his grievance was denied on January 27, 1998, and Mr. McCormick withdrew the grievance as the union representative.
• Ms. Barbay was the custodian of, and responsible for, two motorized scooters. Lockheed Martin provided these scooters to designated employees whose job duties required them to travel extensively throughout the large Michoud facility. Ms. Barbay designated only certain employees as authorized to use the scooters. She also insisted that these employees keep the scooters padlocked at all times when not in use. Mr. Brandon was a designated employee who was authorized to use one of the scooters.
|fi* On several occasions, Ms. Barbay noticed Mr. Brandon’s assigned scooter unlocked when not in use. She generally would put a padlock on it. In response, Mr. Brandon filed a grievance against Ms. Barbay, expressing his disagreement with her over whether he had to lock the scooter when he briefly walked away from it. Management initially denied his grievance on March 25, 1998. Ms. Barbay continued to insist that he lock the scooter when it was not in use and that he was the only one authorized to use it.
• On September 16, 1998, at about 6:30 p.m., before Mr. Brandon’s scheduled lunch break, Ms. Barbay noticed his designated scooter parked outside a building away from his office. The scooter was unlocked. She immediately went inside the building to check if Mr. Brandon was there, but did not find him there. She then drove the scooter to Mr. Brandon’s office area and locked it. When she entered his office area, she found Mr. Brandon sitting at a coworker’s desk lying with his head and arm down on the desk. His eyeglasses were on the desk; his eyes were closed.
• Ms. Barbay called out Mr. Brandon’s name in a normal tone of voice, but he did not respond. Speaking louder, she repeated his name, but he still did not respond. She had a bottle of cold water in her hand, which she used to gently nudge him. At that point, he woke up and responded. Her first question to him was why was the scooter unlocked and at another location without him. He responded by objecting loudly and arguing with her. He informed her that he had loaned the scooter to a coworker and that he had the authority to do so because he was a supervisor. He also loudly objected regarding the need to lock the scooter. Ms. Barbay opposed his responses, but he continued to argue loudly. She stated that any further questioning of Mr. Brandon about the sleeping incident would simply have escalated the already argumentative situation and that she would have been unable to resolve it at that time. Although she walked away, on that same day she reported the sleeping incident to management and to Mr. Bayas’ office.
• Also on September 16,1998, Mr. Brandon filed a grievance, alleging that Ms. Barbay was harassing him by repeatedly counseling him about his use of the scooter.
• Before Mr. Bayas could investigate the complaints regarding the September 16th incidents, he allegedly found Mr. Brandon taking an extended lunch break on Friday, September 18, 1998. Mr. Brandon’s scheduled lunch break on Friday was between 6:30 and 7:00 p.m. |7Mr. Brandon denied extending his lunch break and maintained that he ended his break and returned to his duties at 7:00 p.m. on that Friday evening.
• On Monday, September 21, 1998, Mr. Brandon’s final day of work, Mr. Ba-yas questioned him regarding the September 16, 1998, and September 18, 1998, complaints.
• On September 24, 1998, Lockheed Martin notified Mr. Brandon that: (i) his grievance against Ms. Barbay regarding the use of the scooter was denied because she was performing her normal supervisory functions when she questioned him, and (ii) he was discharged for sleeping at work on September 16, 1998, and taking an extended lunch break on September 18, 1998.

Based on those factual findings, the ALJ’s articulated findings of law were as follows:

[T]he claimant was discharged for two separate, recent, incidents which were investigated by the employer. The incident concerning an extended lunch break was not substantiated in this hearing. The claimant denied it and the employer presented no firsthand testimony concerning that incident. However, the employer has substantiated the other recent incident when he was caught sleeping while on duty. He did this after previously having been given a final warning and suspension for another incident when he was inattentive at work and not performing his duties. Under these circumstances, it must be determined that the claimant was discharged from the employment due to misconduct connected with the employment.

On May 21, 2000, the Board of Review, in a three-to-two decision, adopted the ALJ’s findings as it own and affirmed the ALJ’s March 2, 1999 decision. Expressing their belief that Mr. Brandon should receive benefits, the dissenters (i.e., the Board’s vice-chairman and secretary) stated:

The claimant had been warned about his previous conduct and had signed a last chance agreement indicating that he would be discharged should any future incidents of misconduct occur. There is no evidence in the records or testimony to substantiate a claim of misconduct with regard to sleeping on the job or abusing a 80 minute lunch period.

|sOn June 4, 1999, Mr. Brandon filed a petition for review in the Civil District Court against Lockheed Martin. In response to Lockheed Martin’s exception of nonjoinder, Mr. Brandon filed a supplemental and amending petition adding the Admistrator of the Division of Employment Security of the Louisiana Department of Labor (the “Administrator”) as a party. See La. R.S. 23:1634(A)(providing that “[t]he administrator shall be deemed to be a party to any such [judicial review] proceeding”).

On November 13, 2001, the trial court judge rendered judgment affirming the Board of Review’s decision. In its reasons for judgment, the trial court noted that although it lacks the authority to receive additional evidence, it possesses “the authority to review the proceedings in their entirety when deciding if sufficient evidence was presented to substantiate the facts found by the Board of Review.” Affirming the Board of Review’s decision, which in-turn affirmed the ALJ’s decision, as correct as a matter of law, the trial court reasoned:

Ms. Susan Barbay, a production supervisor testified that she observed Mr. Brandon sleeping in his work area on September 16, 1998, and that she made a report of her observations.... There was sufficient evidence Mr. Brandon was sleeping while on duty and that he had previously been suspended and given a warning that future insurrections would result in his termination.
The instant pro se appeal by Mr. Brandon followed.

JgDISCUSSION

Judicial review in unemployment proceedings is limited by La. R.S. 23:1634, which provides that “findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court (on appeal) shall be confined to questions of law.” La. R.S. 23:1634(B). Based on this statutory provision, the jurisprudence has defined judicial review, in cases such as this one, as requiring the following two-step process: “first, determination of whether the facts are supported by competent evidence, and second, whether the facts, as a matter of law justify the action taken.” Butler v. Gerace, 506 So.2d 619 (La.App. 4th Cir.1987).

Judicial review “does not entail the weighing of evidence, drawing of inferences, re-evaluation of evidence or substituting the views of this court for those of the Board of Review as to the correctness of the facts.” Dipol v. Administrator, Office of Employment Sec. of Louisiana Dep’t. of Labor, 526 So.2d 393, 394 (La.App. 4th Cir.1988). Nonetheless, “there must be legal and competent evidence to support the factual findings on which the administrative determination turns.” Id. Simply stated, the Board of Review’s findings “are conclusive if supported by sufficient evidence, since sufficiency of the evidence is always a question of law.” Charbonnet v. Gerace, 457 So.2d 676, 679 (La.1984). Absent fraud, the Board of Review’s factual findings are conclusive, limiting judicial review to legal questions. Toney v. Francis, 618 So.2d 597, 599 (La.App. 2d Cir.1993)(citing Charbonnet, supra).

| inThe employer has the burden of providing disqualifying misconduct by a preponderance of the evidence. Charbonnet, 457 So.2d at 679. In this case, the applicable statutory provision under which Mr. Brandon was disqualified from receiving benefits is La. R.S. 23:1601(2)(a), which defines disqualifying misconduct to mean:

Mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.

La. R.S. 23:1601(2)(a). Although the above definition of misconduct was adopted by the Legislature in 1990, the jurisprudence has continued to apply an earlier, judicially crafted standard in determining if disqualifying misconduct is present. The Louisiana Supreme Court’s most recent statement of that standard was enunciated by former Justice Lemmon in Char-bonnet as follows:

For a claimant to be disqualified from benefits because of “misconduct connected with his employment” under La. R.S. 23:1601(2), the “misconduct” must have resulted from willful or wanton disregard of the employer’s interest, from a deliberate violation of the employer’s rules, or from a direct disregard of standards of behavior which the employer has the right to expect from his employees. Pilgrim Manor Nursing Home, Inc. v. Gerace, 387 So.2d 660 (La.App. 3rd Cir.1976). The type of behavior which is considered “willful misconduct” is intentional wrong behavior. Banks v. Administrator of Employment Security, 393 So.2d 696 (La.1981). Because of the beneficial purpose of unemployment compensation, the term “misconduct” should be construed so as to favor the awarding of benefits rather than disqualification.

Charbonnet, 457 So.2d at 678.

Turning to the present case, Mr. Brandon in his pro se brief lists multiple assignments of error. The gist of his arguments is that the agency’s finding of disqualifying misconduct is neither factually, nor legally supported. Factually, he argues that Ms. Barbay’s testimony that she caught him sleeping was unsupported for three reasons: (1) because there were no other witnesses, (2) because her testimony was inconsistent in certain respects with her prior statements, and (3) because of the ongoing personality conflict between them as evidenced by the prior grievances he had filed against her. He further argues that because the prior warning was not listed as a reason for his termination in the Notice to Appear for Hearing before the ALJ, it was improper for the agency to consider that prior warning. Legally, he argues that the agency failed to apply the correct legal standard for determining disqualifying misconduct.

Although we find Mr. Brandon’s contentions challenging the factual findings of the ALJ belied by the jurisprudence, we find his contentions challenging the legal finding of disqualifying misconduct persuasive. The record reflects that there was sufficient evidence to support the facts as found by the ALJ, and adopted by the Board of Review. The narrow issue before us is whether the agencies’ conclusion that Mr. Brandon’s conduct constituted disqualifying misconduct was legally erroneous. As noted, the sole basis on which the ALJ l^found Mr. Brandon was disqualified was the September 16,1998 sleeping incident. We find, as a matter of law, that Mr. Brandon’s falling asleep at his co-worker’s desk on one occasion was not disqualifying misconduct.

Lockheed Martin, supported by the Administrator, argues that sleeping on the job is disqualifying misconduct because it is a violation of an employer’s reasonable workplace rule. Likewise, in affirming the agency, the trial court characterized Mr. Brandon’s termination as being for violation of “work hour policies.” The jurisprudence, however, has recognized that not every violation of an employer’s workplace rule constitutes disqualifying misconduct. See Harville v. ConAgra Poultry Co., 99-773, p. 3 (La.App. 3 Cir. 11/24/99), 768 So.2d 42, 45. The determination of whether a violation of such rule constitutes disqualifying misconduct is determined “not by the employer’s rules, but by the statute.” Cabezas v. Administrator, Div. of Employment Sec., 557 So.2d 985, 988 (La.App. 4th Cir.1990). In determining if the violation of such rule constitutes disqualifying misconduct, “one must look to the nature of the violation with due consideration to the factors which enter into the proper conduct of the employer’s business.” Hardeman v. Blache, 605 So.2d 671, 674 (La.App. 2d Cir.1992).

Again, the nature of the violation at issue here is sleeping on the job. The Louisiana jurisprudence addressing the question of whether sleeping on the job constitutes disqualifying misconduct has answered that question in the affirmative, but has recognized an exception for mitigating circumstances. Illustrative of such 113mitigating circumstances is Pilgrim, supra, which involved a nurse’s aid who dozed off at the nurse’s station. In finding the aid’s conduct did not constitute a deliberate violation of her employer’s rule, the court reasoned that the aid had been called in by her employer to work the night shift on her day off to cover for another employee and thus did not have an opportunity to prepare for working the night shift by resting. The court further noted that the aid had worked for the employer for three and one-half years.

Several Louisiana cases have distinguished Pilgrim and found an employee guilty of disqualifying misconduct for sleeping on the job. Avery v. St. Patrick Hosp. of Lake Charles, 551 So.2d 837, 839 (La.App. 3rd Cir.1989)(finding misconduct when registered nurse fell asleep while working the night shift); Sanders v. Administrator of Office of Employment Sec., 520 So.2d 1091, 1094 (La.App. 3rd Cir. 1987); Allen v. Sumrall, 398 So.2d 108, 110 (La.App. 3rd Cir.1981).

Similar to the Louisiana jurisprudence, the out-of-state jurisprudence has likewise recognized that sleeping on the job may or may not constitute misconduct depending upon the circumstances of the case. See Shauna Cully Wagner, Work-Related Inefficiency, Incompetence, or Negligence as “Misconduct” Barring Unemployment Compensation, 95 ALR5th 329, § 8 (2002). Based on our review of the Louisiana and out-of-state jurisprudence, we have identified four relevant factors the courts generally have considered in determining whether sleeping on the job constitutes disqualifying misconduct:

1. the nature of the employee’s job responsibilities;
2. the location in which the employee was found sleeping;
3. the presence (or absence) of a written rule prohibiting sleeping on the job and prior warnings for sleeping on the job; and
|u4. any other aggravating or mitigating circumstances.

First, the jurisprudence has generally found sleeping on the job to be misconduct when the employee’s job is such that he or she is expected to be alert at all times given the serious consequences that failure to stay alert may present. Examples of such jobs include health care professionals and boiler room operators. See Avery, 551 So.2d at 839 (noting the nurse’s supervisor testimony regarding the serious consequences the nurse’s sleeping on duty could cause her patients); Jennings v. Unemployment Appeals Comm’n, 689 So.2d 1193 (Fla. 4th DCA 1997)(noting that nursing technician’s falling asleep, albeit during her break, was willful misconduct given hospital setting in which she worked and recognizing that in another contexts such conduct would have been simply negligence); Bell v. Appeal Bd. of Michigan Employment Sec. Comm’n, 359 Mich. 649, 103 N.W.2d 584 (1960)(finding misconduct when boiler room worker who fell asleep on job given serious danger posed by worker’s failure to stay alert). There is no contention in this case that Mr. Brandon’s job falls within this category.

Second, the location in which an employee is found sleeping is significant for two reasons. One, public perception regarding the employer’s business may be tainted if an employee is observed sleeping on the job. See Avery, supra (noting that a nurse’s sleeping at the nurses’ station gives rise to a “public relations problem”). Two, logic dictates that an employee falling asleep outside the designated work area is more egregious conduct than an employee falling asleep at his or her desk, absent a public perception issue. Here, Mr. Brandon was found sleeping inside his work area.

h ¿Third, the existence of a written rule and prior violations logically support a fining of misconduct. Indeed, many of the cases that have found sleeping on the job to be misconduct have involved employees who were given prior warnings for the same behavior. See Hall v. Doyal, 191 So.2d 349 (La.App. 3rd Cir.1966)(finding misconduct where employee repeatedly warned about sleeping on the job). Although the record does not contain any evidence that Lockheed Martin had a written rule prohibiting sleeping on the job, we find this type of conduct falls within the category of obvious, expected work place behavior for which an employer need not have an established rule. See Biggs v. Commonwealth, Unemployment Compensation Bd. of Review, 66 Pa. Commw. 117, 120, 443 A.2d 1204, 1206 n. 3 (1982)(finding employee’s reliance on absence of established rule prohibiting sleeping on job misplaced and noting that “[a]n employer need not have an established rule where the behavioral standard is obvious.”)

Finally, the presence of aggravating or mitigating factors have been considered by the jurisprudence. Even absent prior warnings, other aggravating factors may warrant a finding of disqualifying misconduct based on a single episode of sleeping on the job. See Auger v. Gillette Co., 303 N.W.2d 255 (Minn.1981)(finding misconduct where two employees who worked the night shift cleaning the premises were found sleeping in a locker room with pillows, blankets, and an alarm clock).

Conversely, the presence of mitigating factors has been recognized as rendering sleeping on the job insufficient to constitute disqualifying misconduct. Pilgrim, supra.; see also Washington v. Board of Review, 211 Ill.App.3d 663, 56 Ill.Dec. 90, 570 N.E.2d 566 (1991)(finding no misconduct by a secretary who fell asleep during a meeting after taking an aspirin for a headache); Lusby v. Unemployment Appeals Comm’n, 697 So.2d 567 (Fla. 1st DCA 1997)(employee taking medication, which he had taken without incident for months, was not guilty of disqualifying misconduct for single incident of falling asleep on job).

In this case, although Ms. Barbay never gave Mr. Brandon the opportunity to explain, Mr. Brandon testified at both hearings that the reason he had his head on a desk and his glasses off was because he had a sinus headache. Although the AL J’s second decision does not mention his testimony, its first decision states:

[T]he claimant was sitting at a desk in his work area when a supervisor, Ms. Sue Barbay, entered the area. He was having sinus problems and was rubbing his eyes and face with his hand when she tapped him on the elbow to inquire if the claimant had loaned to another worker a piece of equipment which she was looking for. He immediately replied that he had. She contested that he did not have the right to do so, and he responded by indicating that the equipment was his responsibility. She did not allege any other problems; however, she later filed a written report alleging that she found the claimant sleeping at the desk when she approached him.

Based on the above analysis, we conclude that Lockheed Martin failed to satisfy its burden of establishing that Mr. Brandon intentionally was napping on the job; rather, we find, at worse, he negligently took a nap due to an apparent sinus headache. We find it significant that Mr. Brandon had been employed by Lockheed Martin for twenty-one years when this incident occurred.

The jurisprudence clearly distinguishes between conduct sufficient to terminate an employee and conduct sufficient to disqualify an employee from unemployment benefits. See Brister v. Whitfield, 522 So.2d 1254, 1256 (La.App. 4th Cir.1988)(noting the standard for disqualification is much higher than the standard for discharging an employee). Although the sleeping incident may have [ 17been sufficient to justify discharging Mr. Brandon from employment, especially given the prior disciplinary action agreement, it was not sufficient to establish disqualifying misconduct under the statute.

DECREE

For the forgoing reasons, the judgment of the trial court is reversed. It is ordered, adjudged, and decreed that the Board of Review, Office of Regulatory Services, State of Louisiana, issue an order directing payment to plaintiff, Alfred Brandon, of the unemployment compensation benefits to which he is entitled.

REVERSED AND RENDERED.

      . An unidentified person informed Ms. Bar-bay that Mr. Brandon was not in that building. Apparently, this was the same person to whom Mr. Brandon had loaned the scooter.

      . In its opinion, the ALJ also noted that the agency's notice to appear for hearing advised the parties that the issue to be addressed was Mr. Barndon's discharge from employment "because of sleeping at work and/or returning to work late after his lunch break.”

      . On November 27, 2000, the trial court granted Lockheed Martin's motion to vacate Mr. Brandon’s subpoena duces tecum seeking production of documents relating to the administrative hearings. In so doing, the trial court in its written reasons for judgment expressly stated that it would review both administrative hearings. Particularly, in its reasons for judgment the trial court stated:
      In order for this Court to accurately review the proceeding the record from the previous hearing of December 8, 1998 must be entered into the record. The March 1, 1999 proceeding indicated that some of the testimony was in direct conflict with testimony given on December 8, 1998. Review of this testimony is necessary to decide if the Board of Review had sufficient evidence to support the findings of facts used in rendering their decision.

      . This circuit expressly has held that, despite the 1990 amendment enacting a statutory definition of “misconduct,” the prior jurisprudential standard will still be applied in determining disqualifying misconduct. See Emke v. Mouton, 617 So.2d 31, 33 (La.App. 4 Cir. 1993); see also Harris v. Houston, 1997-2847, p. 2 (La.App. 4 Cir. 11/4/98), 722 So.2d 1042, 1046 (Byrnes, C.J., concurring). Likewise, the Second, Third, and Fifth Circuit have so held. See Harsco Corp. v. Victoria, 2001-1486, p. 3 (La.App. 3 Cir. 3/20/02), 812 So.2d 871, 874 (collecting cases); see also Taco Bell Corp. v. Perkins, 95-225, pp. 5-7 (La.App. 5 Cir. 9/26/95); 662 So.2d 34, 36-37. Although the First Circuit has not expressly so held, it has continued to apply the pre 1990 jurisprudential standard. See St. Tammany Parish School Bd. v. State, Dep’t of Labor, Office of Employment Sec., 2001-0757, p. 6 (La.App. 1 Cir. 5/10/02), 818 So.2d 914, 918(citing Charbonnet, surpa).

      . Although he also raises other issues regarding Lockheed Martin’s fraud in obtaining a remand for a second hearing, we find it unnecessary to address those issues given our finding that Mr. Brandon is not disqualified from receiving benefits for another reason. See King v. Tangipahoa Parish Police Jury, 96-0934, p. 5 (La.App. 1 Cir. 2/14/97), 691 So.2d 194, 197 n. 1 (declining to reach issue of fraud).

      . First, the testimony of one witness is sufficient to satisfy the employer’s burden. Second, credibility issues, such as inconsistencies in testimony, are not appropriate for judicial review. Third, prior warnings for violating employer rules are relevant in determining disqualifying misconduct. As to the personality conflict between him and Ms. Barbay, the record reflects that Mr. Brandon filed several grievances against Ms. Barbay and that they clearly disagreed regarding the use of the scooters. Nonetheless, Mr. Brandon was not discharged because of his disagreement with Ms. Barbay over the use of the scooters; rather, he was discharged because of the sleeping incident.

      .Nor do we find the prior warning based on the December 1998 incident of watching television supports such a finding. That prior incident occurred nine months before the sleeping incident. There was no evidence introduced to establish any misconduct on Mr. Brandon’s part during that intervening nine-month period. Moreover, we find sleeping on the job entirely different in nature than watching television.

      . Given Ms. Barbay’s testimony that she found Mr. Brandon sleeping on the job coupled with the fact he was given a prior warning that any future violation would result in his discharge, they argue that Lockheed Martin clearly met its burden of proving disqualifying misconduct.

      . Although he was at a co-worker's desk, he explained at the hearing that he did not have a telephone at his own desk. Since his job required he respond when he was paged by-phone, he testified that he would sit at his coworkers' desks, which had telephones. These co-workers worked the first shift so their desks were available for his use on the second shift. Mr. Brandon also expressly denied that he was “nesting,” i.e., a term used to describe an employee seeking a secretive place to take a nap on the job.

      . Although Mr. Brandon’s discharge was for sleeping on the job, the focus of the hearing was his violation of the rules regarding the use of scooters. Indeed, we find telling the statement in the Administrator’s memorandum filed in the trial court that Mr. Brandon’s discharge was based on “sleeping on the job and aggravated failure to follow orders from his superior officer.” The latter reference is to Mr. Brandon’s refusal to abide by Ms. Barbay’s rules regarding the scooter. Moreover, Mr. Brandon filed several grievances against Ms. Barbay, and they clearly did not agree regarding the use of the scooters. Nonetheless, even a severe personality clash between an employee and his supervisor, standing alone, does not constitute disqualifying misconduct. Dawkins v. Sumrall, 424 So.2d 407, 408 (La.App. 2d Cir.1982). "While such a personality conflict gives the employer reason for terminating the employee for the employer's own purpose, this alone does not constitute '... the kind of willful and deliberate misconduct that will disqualify the employee from receiving unemployment benefits as provided by law.' ” Id. (quoting Caldwell v. Gerace, 378 So.2d 1045 (La.App. 2d Cir. 1979)).


author: I THIBODEAUX, Chief Judge.

text:
    Barry HORNSBY and Larry Hornsby v. BAYOU JACK LOGGING, et al.
    Nos. 03-1544.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2004.

      Jerry Joseph Falgoust, Dauzat, Fal-goust, Caviness and Bienvenu, L.L.P., Opelousas, LA, for Defendants/Appellants — Republic Vanguard Insurance Company, Kenneth Guillot and Bayou Jack Logging.
    Christopher Shannon Hardy, Penny & Hardy, Lafayette, LA, for Defendani/Ap-pellant — Republic Vanguard Insurance Company.
    Frederick Lewis Welter, Rayne, LA, for Secondary Plaintiffs/Appellants — Barry Hornsby, Larry Hornsby, Douglas Guidry, and Bernadette Guidry.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   I THIBODEAUX, Chief Judge.

In these consolidated timber trespass cases the defendants, Bayou Jack Logging (Bayou Jack), Kenneth Guillot (Guillot), the owner of Bayou Jack and Bayou Jack’s insurer, Republic Vanguard Insurance Company (Republic), admit to wrongfully cutting down trees on the property of the plaintiffs, Barry and Larry Hornsby (the Hornsbys), and Douglas and Bernadette Guidry (the Guidrys). The defendants appeal the judgment of the trial court awarding the plaintiffs costs for replacing/restoring trees to their property. The defendants also appeal the amount awarded by the trial court in damages, asserting that the award was abusively high.

The Hornsbys and the Guidrys also filed appeals questioning the trial court’s judgment that their damage amount should be reduced by their comparative fault. They also assert that the trial court erred in failing to award them the full amount of restoration damages. For the following reasons, we affirm the decision of the trial court with respect to the amount of damages awarded and with respect to awarding restoration costs. We reverse the trial court’s decision to reduce the plaintiffs’ recovery by twenty percent.

I.

ISSUES

The issues in these consolidated cases are:

(1) whether the trial court erred in allowing the plaintiffs to claim restoration/replacement costs when they did not specifically plead in their petition damages for restoration/replacement of the trees cut;
(2) whether the trial court abused its discretion in the amount of damages it ultimately awarded; and,
(3) whether the trial court erred in ruling that the plaintiffs’ recovery should be reduced by twenty | ^percent for their comparative fault in failing to fence their properties on all sides when the defendants failed to specifically plead comparative fault as an affirmative defense.
II.

FACTS

In June 2001, Bayou Jack contracted with landowners in the Roberts Cove area of Acadia Parish to conduct logging operations. However, it did not contract with the Guidrys or the Hornsbys who also owned land in that area. While cutting timber, Bayou Jack employees crossed the boundary of the Cramer land and removed trees from acreage owned by the plaintiffs. There is no dispute that Bayou Jack cut, felled and removed the trees without the plaintiffs’ consent. The trial court found that Bayou Jack was in good faith when it cut the trees on the Guidry and Hornsby land. This finding is also not in dispute.

The Hornsbys, two brothers, purchased their land from their family estate in 1994. They testified that they camped, hunted, and rode horses on the land and planned to build on the land. Larry planned to build his retirement home and Barry planned to build a weekend camp. The Guidrys, husband and wife, testified that the land they purchased in 1976 had been owned by Mrs. Guidry’s relatives and that they too planned to build their retirement home on the land. Mr. Guidry had built many homes in the past in connection with his earlier ownership of a lumberyard and construction company. He also testified that a portion of the property was intended as a home site for his daughter and son-in-law.

Trial by judge in this matter was held in May 2003 with testimony from Mr. Guidry, the Hornsbys and Kenneth Guillot (Guil-lot), the owner of Bayou Jack, as well as a number of experts in forestry, tree valuations, real estate appraisal and ^arboriculture. The issue at trial was the amount of damages due to the plaintiffs. In their petition, the plaintiffs requested that the court award damages in an amount “three times the full amount of the damages sustained.” At the conclusion of trial, the trial court awarded the Guidrys damages in the amount of $155,000.00 and the Hornsbys damages in the amount of $224,000.00, subject to a twenty percent reduction for comparative fault. The trial court found that the plaintiffs were comparatively negligent for the cutting of the trees because they failed to fence their properties on all sides. It is from this judgment that both the plaintiffs and defendants appeal.

III.

LAW AND DISCUSSION

Failure to Plead Special Damages

The defendants assert that the plaintiffs did not specifically allege restoration/replacement damages in their petition and, therefore, the trial court erred in awarding those damages. The defendants further note that the plaintiffs requested damages pursuant to La.R.S. 3:4278.1 in their petition. Louisiana Revised Statutes 3:4278.1 provides, in part, that anyone who, in good faith, cuts and removes any trees on the property of another without the property owner’s consent, is liable to the property owner for three times the fair market value of the trees that were cut and removed. The statute does not provide for restoration/replaeement damages. The plaintiffs contend that they did not have to make a special allegation specifically requesting restoration/replacement damages as long as the defendants were put on notice that their damage request included the costs of returning their property to its original condition.

\“ ‘Special damages are those which either must be specially pled or have a ‘ready market value,’ i.e., the amount of the damages supposedly can be determined with relative certainty.’ ” Wainwright v. Fontenot, 00-0492, p. 5 (La.10/17/00), 774 So.2d 70, 74, quoting, Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7-2 (Mi-chie 1996) (footnotes omitted). Items of special damages must be specifically alleged in the pleadings. La. Code Civ.P. art. 861. Generally, a trial court may not award special damages which have not been specifically plead. Citing a first circuit decision relied upon by the defendants in the present case, Stevens v. Winn-Dixie of Louisiana, 95-0435 (La.App. 1 Cir. 11/9/95), 664 So.2d 1207, the second circuit discussed the purpose of La.Code Civ.P. art. 861 in Wiley v. McDay, 34,985, p. 5 (La.App. 2 Cir. 10/31/01), 799 So.2d 624, 627, which is “to avoid the imposition of surprise upon the defendant.” Louisiana Code of Civil Procedure Article 1154 provides the only exception to the general rule announced in La.Code Civ.P. art. 861, and provides in pertinent part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings.”

In their pretrial memorandum, the plaintiffs urged that the “proper measure of damages [to their property] is the cost of restoring the property to its condition prior to the damage.” Also the plaintiffs’ expert witnesses, Bruce Willis, an ornamental and shade tree expert, and Robert Thibodeaux, an arborist, testified in their depositions regarding the value of the trees cut and the cost to restore the plaintiffs’ property to its pre-cut condition. The plaintiffs also asserted recovery pursuant to La.Civ.Code art. 2315 that requires one who causes damage to another to repair that damage. Evidence of the restoration costs were litigated at trial. We find that the defendants were not surprised that the plaintiffs would seek to recover | ¿restoration damages as opposed to requesting triple the cost of the market value of the trees removed, pursuant to La.R.S. 3:4278.1.

Under the circumstances presented in this case, we find that the pleadings were amended to include the special damages of restoration/replacement costs. Therefore, the issue of the cost of replacing the cut trees and restoring the plaintiffs’ property was properly before the trial court.

Quantum

Both parties contend that the amount awarded by the trial court was an abuse of discretion. The defendants assert that the amounts of $154,000.00 for the Guidrys and $224,000.00 for the Horns-bys are too high. The defendants further assert that an award that is twelve times the market value of the property damaged is abusively high. Conversely, the plaintiffs assert that those amounts are too low. The plaintiffs argue that the damage amount should be the cost to replace the trees that were cut and removed with trees of the same size. The amount of damages awarded by the trial court is the amount plaintiffs’ expert testified that it would cost to replace the cut trees with new trees that are six inches in diameter.

The quantum question in this appeal is whether the trial court’s award for restoration was reasonable. The trier of fact is accorded great discretion in the determination of damages. The role of an appellate court in reviewing an award of damages is not to decide what it considers to be an appropriate award, but rather to review the trier of fact’s discretion to determine whether that discretion was abused. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The adequacy or inadequacy of the award should be determined by the facts or circumstances of the case under consideration. Corbello v. Iowa Production, 02-0826 (La.2/25/03), 850 So.2d 686. The burden is on the | (¡plaintiffs to prove special damages by a preponderance of the evidence. Johnson v. State through Dept. of Public Safety and Corrections, 95-0003 (La.App. 1 Cir. 10/6/95), 671 So.2d 454, writ denied, 95-2666 (La.1/5/96), 667 So.2d 522. While we must defer to the trier of fact’s great discretion in the assessment of general damages, the manifest error standard of review controls on the issue of the assessment of special damages. Id. After a thorough review of the record in this case, we conclude that the trial court did not err in awarding the Hornsbys, $224,000.00 and the Guidrys $154,000.00 in restoration damages.

The trial court based its decision largely upon the expert testimony presented at trial regarding the amount of money needed to replace the trees that were cut and removed from the plaintiffs’ property with the result being to restore the property as close as possible to its original condition. The plaintiffs presented the expert testimony of Mr. Thibodeaux, an arborist they consulted to help them restore their property. Mr. Thibodeaux explained his expertise as a person who helps others make decisions about what to do with respect to trees on their property.

Upon Mr. Thibodeaux’s examination of the Hornsby and Guidry property where the trees were cut, he saw tree stumps, erosion and some invasive species of trees beginning to take over the site. From his examination of the remaining tree stumps, he noted that most of the former trees were healthy water oaks. A forestry expert, Bruce Willis, was called by the Hornsbys to give them an appraisal of the value of the timber cut from their property. He testified at trial regarding the size, number and types of trees cut by the defendants. Mr. Thibodeaux testified that he agrees with Mr. Willis’ opinion with respect to the size, number and types of trees cut. Mr. Willis’ testimony corroborates Mr. Thibodeaux’s assessment of the health of the trees cut. After Mr. Willis explained his method of counting the Jarees and determining their sizes, he concluded that sixty-six hardwood trees were taken from the Hornsby property and twenty-nine saw timber trees. Further, ninety-nine little trees were run over by Bayou Jack’s “skidder.” On the Guidry property, he found that there were fifty-five hardwood pulpwood trees and fifty-three hardwood timber trees. Also, one hundred eight little trees were run over by Bayou Jack’s skidder. He further testified that the sizes of the trees ranged from ten inches up to fifty inches in diameter. He estimated the value to be $600.00 per thousand board feet. The fifty inch trees cannot be replaced. Mr. Willis also estimated a value of the ornamental shade trees that were cut and removed. Mr. Willis testified that the value of the Guidry trees, cut and removed, is $115,439.20, and the value of the Hornsby trees, cut and removed, is $94,979.12. With respect to the timber value, Mr. Willis estimated the value to be $12,021.40 for the Guidrys and $10,507.89 for the Hornsbys.

To restore the property to its original condition, Mr. Thibodeaux testified that trees as large as those that were cut would have to be transplanted on the property. He explained that trees are replaced according to the trunk diameter size as opposed to the height of the trees. Due to the cost of finding trees with large diameter trunk sizes that match the trees that were cut and the terrain of the property, Mr. Thibodeaux recommended that the cut trees be replaced with trees that have a smaller diameter trunk size. According to Mr. Thibodeaux, the cost of acquiring and positioning replacement trees ranged in price from $650.00 for a four inch trunk diameter red oak to $50,000.00 for a tree with a fifty inch diameter trunk. He further explained that there would be an additional cost of transporting the trees to the property. If the replacement trees could be located in an area close to the property, the additional cost would be minimal. However, if the trees are far from the property the | scost could be very high. Anything beyond a thirty-six diameter trunk sized tree would probably have a transportation cost added to the acquisition and replanting cost. Mr. Thibodeaux testified that he was comfortable with replanting trees with a four inch diameter trunk to restore the property. This type of restoration involves replacing trees with the same size trees that were cut.

Mr. Thibodeaux testified about another method of restoration called the “six inch replacement method.” He explained that instead of basing the replacement trees on the size of the trees that were cut, a twenty-four-inch diameter trunk tree would be replaced with four trees of six-inch diameter. Although the property owners would not get exactly what they had before, the property would be nearly the same. Mr. Thibodeaux further explained that timber companies typically use one-year-old saplings to replace cut trees. However, according to Mr. Thibo-deaux, the saplings would get “lost in the weeds” and “overrun by the invasive species.” Thus, the plaintiffs’ expert concluded, the timber company replacement procedure would not restore the property to as nearly as possible to its original condition.

The trial court found that Mr. Thibo-deaux’s “six-inch replacement procedure” was appropriate to restore the plaintiffs’ property without giving the plaintiffs a windfall. In Mr. Thibodeaux’s opinion, the “six-inch replacement procedure” is the best way to restore the property. To that end, the trial court awarded the Hornsbys $224,000.00 and the Guidrys $155,000.00. We find that the record supports the amounts awarded to the plaintiffs for restoration of their property. The defendants’ claim that the amount is excessive and the plaintiffs’ claim that the amount is too low are without merit.

Comparative Fault

The trial court found that the plaintiffs were comparatively negligent in ^causing the damage to their property because they failed to fence the southern boundaries of their land, therefore leaving them vulnerable to property damage by good-faith loggers, like Bayou Jack, or timber pirates. Therefore, the trial court found that the Hornsbys were twenty percent at fault and the Guidrys were also twenty percent at fault for the damage done to their property. The plaintiffs assert that the trial court erred in assessing them with any percentage of fault because the defendants failed to assert comparative negligence as an affirmative defense. We agree with the plaintiffs.

Pursuant to La.Code Civ.P. art. 1005, “[t]he answer shall set forth affirmatively ... any ... matter constituting an affirmative defense.” “The policy behind [ La.Code Civ.P. art. 1005] is the prevention of ‘trial by ambush.’ ” Patterson v. State, 95-1668, p. 8 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, 478, writs denied, 97-27, 97-108 (La.2/21/97), 688 So.2d 513, quoting, Rider v. Fontenot, 463 So.2d 951 (La.App. 3 Cir.1985). Comparative fault must be pleaded as an affirmative defense and the party asserting the defense bears the burden of proving, by a preponderance of the evidence, that the negligence of the other party was a cause-in-fact of the accident. Trahan v. Savage Industries, Inc., 96-1239 (La.App. 3 Cir. 3/5/97), 692 So.2d 490, units denied, 97-1636, 97-1652 (La.10/3/97), 701 So.2d 209. The defendants did not plead the affirmative defense of comparative fault. Therefore, the trial court’s judgment reducing the plaintiffs’ recovery amounts for their comparative fault is erroneous.

IV.

CONCLUSION

For the above reasons the judgment of the trial court is affirmed as to the type of damages to which the plaintiffs are entitled and its assessment of the amount |10of damages the plaintiffs should be awarded. The judgment is reversed and set aside insofar as it finds that the plaintiffs were comparatively negligent in causing damage to their property and insofar as it reduces their recovery based on the trial court’s decision that they were twenty percent at fault for causing their property damage. Costs of this appeal are assessed to the defendants.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


author: THIBODEAUX, Chief Judge.

text:
    Douglas GUIDRY and Bernadette Guidry v. BAYOU JACK LOGGING, et al.
    No. 03-1545.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2004.

      Jerry Joseph Falgoust, Dauzat, Fal-goust, Caviness and Bienvenu, L.L.P., Opelousas, LA, for Defendants/Appellants-Republic Vanguard Insurance Company, Kenneth Guillot and Bayou Jack Logging.
    Christopher Shannon, Hardy, Penny & Hardy, Lafayette, LA, for Defendant/Appellant-Republic Vanguard Insurance Company.
    Frederick Lewis Welter, Rayne, LA, for Secondary Plaintiffs/Appellants-Barry Hornsby, Larry Hornsby, Douglas Guidry, and Bernadette Guidry.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Hornsby v. Bayou Jack Logging, et al, 03-1544 (La.App. 3 Cir. 05/05/2004), 872 So.2d 1244, 2004 WL 957666, the judgment of the trial court is affirmed. Costs of the appeal are assessed to the defendants.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.