author: | .PETTIGREW, J.

text:
    Lillian LYONS v. TERREBONNE PARISH SCHOOL BOARD and Louisiana Workers’ Compensation Corporation.
    No. 2003 CA 0325.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.
    Lillian Lyons, Houma, In Proper Person.

      Terrel A. Thomas, Baton Rouge, for Defendant-Appellee Terrebonne Parish School Board and Louisiana Workers’ Compensation Corporation.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   | .PETTIGREW, J.

In this workers’ compensation action, the workers’ compensation judge (“WCJ”) rendered judgment in favor of defendant, Terrebonne Parish School Board, finding that claimant, Lillian Lyons, failed to meet her burden of proving she sustained a work-related injury and, thus, was not entitled to workers’ compensation benefits. In a judgment rendered November 15, 2002, the WCJ dismissed Ms. Lyons’ claim for benefits with prejudice. Ms. Lyons has appealed.

Prior to filing her appeal brief with this court, Ms. Lyons filed a motion to supplement the record on appeal with various documents relating to medical treatment that Ms. Lyons apparently received after trial on the merits. On June 2, 2003, another panel of this court referred this motion to the merits. We have considered the motion to supplement the record and must deny same as these documents appear to be new evidence not considered below. An appellate court must render its judgment upon the record on appeal. La.Code Civ. P. art. 2164. The record on appeal is that which is sent by the Office of Workers’ Compensation to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions, judgments and other rulings, unless otherwise designated. La.Code Civ. P. arts. 2127 and 2128. As an appellate court, we cannot review evidence that is not in the record on appeal and have no jurisdiction to receive new evidence. Hudson v. East Baton Rouge Parish School Bd., 2002-0987, p. 2 (La.App. 1 Cir. 3/28/03), 844 So.2d 282, 284-285.

With regard to the merits of Ms. Lyons’ appeal, we are mindful that factual findings in a workers’ compensation case are subject to the manifest error standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As such, in order for an appellate court to reverse a workers’ compensation judge’s factual findings, it must find from the record that a reasonable factual basis does not exist for the findings of the workers’ compensation judge and that the record establishes that the findings are clearly wrong. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard | .demands great deference to the trier of fact’s findings; only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Following a thorough review of the record before us, we agree with the findings of the WCJ. Accordingly, we affirm the judgment below. In so doing, we attach and adopt the WCJ’s written reasons for judgment rendered on December 24, 2002, which correctly and succinctly set forth the facts of this case and applicable law. All costs associated with this appeal are assessed against claimant, Lillian Lyons.

JUDGMENT AFFIRMED; MOTION TO SUPPLEMENT APPEAL RECORD DENIED.

[¿ATTACHMENT

LILLIAN LYONS VERSUS TERREBONNE PARISH SCHOOL BOARD

DOCKET NUMBER 01-06675

OFFICE OF WORKERS’ COMPENSATION

DISTRICT 9, HOUMA

STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

STATEMENT OF THE CLAIM

The claimant, Lillian Lyons, filed a Disputed Claim for Compensation on September 10, 2001, against the defendant, Terre-bonne Parish School Board, alleging that no wage benefits had been paid, no medical treatment had been authorized, medical prescription not paid or authorized and for penalties and attorney fees due to defendant’s alleged arbitrary and capricious failure to inform their insurance carrier, authorize prescriptions and medical treatment and for failure to commence TTD benefits.

The issues presented to this Court at trial for consideration were: 1) whether or not the claimant’s, Lillian Lyons, current back injury is related to any injury which occurred while in the course of and arising out of her employment with defendant, Terrebonne Parish School Board; 2) whether or not the claimant, Lillian Lyons, has an earning capacity equal to or more than 90% of her average weekly wage since the time of her alleged accident; 3) whether or not the claimant, Lillian Lyons, is entitled to any workers’ compensation benefits, including temporary total bene-

fits, permanent partial benefits or supplemental earning benefits; 4) whether or not the claimant, Lillian Lyons, is presently disabled as a result of her alleged accident on July 31, 2001; 5) whether or not the claimant is entitled to medical benefits; 6) whether or not the claimant, Lillian Lyons, is entitled to penalties and attorney fees; 7) whether or not the defendant, Terre-bonne Parish School Board, is entitled to reduce benefits as provided in LSA-R.S. 23:1225; and 8) whether or not the defendant, Terrebonne Parish School Board, is entitled to a reduction of benefits under LSA-R.S. 23:1206.

FINDINGS OF FACT

1. Contrary to the claimant’s 1008, she did not report the alleged accident to Ms. Patricia Knightshed, a co-worker, on the date of the alleged accident, July 30, 2001.

2. The claimant stated on the 1008 that she had been “feeling sore for (2) two weeks prior to July 30, 2001 when on that day while lifting furniture, felt tingling. ..”. The claimant testified at trial she had not experienced pain prior to July 30, 2001.

|s3. The claimant also stated on the 1008 that Ms. Knightshed, Jimmy Andras, claimant’s supervisor and John Chais-son, a co-worker, were witnesses to the alleged accident. All three testified the claimant did not tell them about the alleged accident on the date it happened. 4. The claimant did not report the alleged accident of July 30, 2001 until she called Mr. Andras, at home on Sunday, August 19, 2001 to tell him that she would not be back to work that Monday. The claimant worked for two weeks after the alleged accident at her regular duties as a custodian without her co-workers or supervisor noticing the claimant had suffered injuries from an alleged on the job accident on July 30, 2001.

5. The claimant’s testimony was vague and did not recite an event happening suddenly or violently that caused the alleged accident or injuries. The claimant did not present any witnesses to corroborate her allegation that she sustained injuries from an alleged accident happening on July 30, 2001 while she was in the course of and arising out of her employment with defendant.

6. The medical evidence provided by the claimant does not relate any pain or condition she has to any alleged accident.

CONCLUSIONS OF LAW

In Smith v. UNR Home Products, 607 So.2d 898 (La.App. 2nd Cir.1992) the issue was whether the claimant suffered a work-related accident within the contemplation of the Workers’ Compensation Statute. The claimant alleged while lifting sinks on a Friday, he felt a sharp sudden pain in his back. He momentarily stopped working and then finished his shift. He did not make an accident report. On Monday the claimant called in and told his supervisor about the pain. The workers’ compensation judge held that the claimant did suffer a work-related accident. The appellate court reversed the judge’s decision, as it was manifest error. The appellate court found that the claimant failed in his burden to prove that he suffered such accident where he did not show an identifiable precipitous event as required by LSA-R.S. 23:1021(1). The only evidence of a sudden occurrence was the claimant’s testimony of a sharp pain. He offered no medical evidence in support of his claim. No one observed him when he allegedly felt the sharp pain. The second circuit court of appeal used the following rules of law that are applicable to the case at bar: 1) LSA-R.S. 23:1021(1) defines an accident as follows: “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration, 2) As a threshold requirement, a worker in a compensation action must establish personal injury by accident arising out of and in the course of his employment, LSA-R.S. 23:1031, 3) As in other civil actions, plaintiff, the worker, in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence, 4) A worker’s testimony alone maybe sufficient to discharge this burden of proof, provided that no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and the worker’s testimony is corroborated by the circumstances following the allege incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends, and by medical evidence. In determining whether the worker has discharged his burden of proof, the finder of fact should accept as true the uncontested testimony of a witness, although the witness is a party, absent circumstances casing suspicion on the reliability of this testimony, 5) Internal inconsistencies |Bor vagueness in the claimant’s version in workers’ compensation suit, while not necessarily fatal, certainly does not assist him in discharging his burden. If the claimant’s testimony contains discrepancies and inconsistencies, that testimony alone does not satisfy his burden of proof. Also, failure to call a witness who would theoretically support the claimant’s version may result in a presumption that his testimony would be damaging.

The appellate court in the Smith case found the claimant failed to carry his burden of showing, by a preponderance of the evidence that he sustained an accident within the definition of LSA-R.S. 23:1021(1). The court also held that the plaintiffs testimony alone was not sufficient to carry his burden of proof.

In the present case, the claimant’s testimony was vague and inconsistent and cannot by itself carry her burden of proof to show she sustained an accident as contemplated by LSA-R.S. 23:1021(1). When the claimant was asked at trial what piece of equipment caused the accident she stated anyone of the pieces could have or she stated she did not remember. The claimant never testified to an event that happened suddenly or violently that caused the alleged accident or injuries. The claimant did not offer witnesses to corroborate her version of the accident, and the circumstances following the accident do not corroborate an accident occurring on July 30, 2001.

The medical evidence provided by the plaintiff from her examinations with Dr. H. Lawrence Haydel, orthopedic surgeon, and Dr. Richard Haydel, medical doctor, only restate the claimant’s version of what happened on July 30, 2001 as to the cause of her pain that she complained of. No where in those medical records does either doctor conclude that the claimant’s injuries were the result of an accident she sustained on July 30, 2001 while employed by defendant.

In Dyson v. State Employees Group Benefits Program, 610 So.2d 953 (La.App. 1st Cir.1992) the issue was whether the employee proved that her injury resulted from an accident within the meaning of LSA-R.S. 23:1021(1). The trial court found that the employee did suffer an accident within the meaning of the statute when she made a pivoting or turning movement that preceded her pain. The appellate court affirmed the trial court’s finding. The appellate court specifically held that Ms. Dyson was able to identify the event marking the time when one can identify the injury. In that case, it was the pivoting movement Ms. Dyson made.

In the present case, the claimant never identified the event that marked the time when she or anyone else could identify the injury she allegedly sustained on July 30, 2001. She was specifically asked at trial to name the time and she testified she did not remember. She was asked which piece of furniture that she lifted caused the injury and she testified it could have been anyone of them. The claimant did not identify the time of her injury as the claimant did in the Dyson case.

In Borel v. Dymanic[Dynamic] Offshore Contractors, 626 So.2d 565 (La.App. 3rd Cir.1993), the issue was exactly the same as in Smith and Dyson. The employee in the Borel case began to feel pain and stiffness in his back and neck within an hour after he lifted a heavy pipe at work. The pain increased, and the employee filed a disputed claim for workers’ compensation benefits with the Louisiana Workers’ Compensation Board. The workers’ compensation judge found that the employee’s injuries were not caused by an accident, and denied his claim. The appellate court reversed and |7remanded the case. The same rules of law used in the Smith case were used in the Borel case.

The appellate court held that Borel proved that he suffered a compensable accident under LSA-R.S. 23:1021(1). The court stated:

Borel’s job required heavy physical labor daily, and that in connection with his work he lifted a heavy piece of pipe just before the end of a workday, a Saturday. Within a very short time afterwards, he felt stiffness and pain which steadily progressed until the following Monday when he reported his injury... Borel’s onset of pain was almost contemporaneous with his lifting of heavy pipe while at work, and his report of the onset of pain came on the next work day.

Therefore, this Court finds the claimant failed to meet her burden of proving that she sustained an injury while in the course of and arising out of her employment with defendant and the claimant is not entitled to any workers’ compensation benefits and is not entitled to medical benefits.

This Court also finds that the claimant is not entitled to penalties and attorney fees.

This Court further finds that the workers’ compensation claim of Lillian Lyons is hereby dismissed with prejudice at her costs.

Signed this 24th day of December 2002, at Houma, Louisiana

/s/ Glynn F. Voisin

Glynn F. Voisin

Judge, District 9, Southern Division Office of Workers’ Compensation 8026 Main Street, Suite 404 Houma, Louisiana 70360


source: Caselaw Access Project

author: J^MCCLENDON, J.

license: Public Domain

text:
    George H. CADE, Jr. v. SAFETY COUNCIL OF the LOUISIANA CAPITAL AREA and LWCC.
    No. 2003 CA 0430.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Charles R. Davoli, Baton Rouge, Counsel for Plaintiff/Appellee George H. Cade, Jr.
    Jeffrey J. Warrens, Baton Rouge, Counsel for Defendants/Appellants Safety Council of the Louisiana Capital Area and Louisiana Workers’ Compensation Corporation.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^MCCLENDON, J.

At issue on appeal in this workers’ compensation case is whether an employee was in the course and scope of his employment when he sustained an accident and injury. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation awarding benefits to the employee.

FACTS AND PROCEDURAL HISTORY

George H. Cade, Jr. was employed as an industrial safety instructor by the Safety Council of the Louisiana Capital Area. On Friday, May 4, 2001, the Safety Council sponsored a crawfish boil for its employees and customers. Catering Kegs supplied a keg of non-alcoholic beer. When the function ended, the keg remained approximately one-half full. Brett Beoubay, the vice president of operations for the Safety Council, approached Mr. Cade, inquiring as to whether he wanted to take the keg home. Initially, Mr. Cade rejected the offer, but ultimately he agreed to take the keg and to return it to Catering Kegs early the following week.

The following Wednesday, May 9, 2001, Mr. Cade reported to work at approximately 5:30 a.m. He clocked in and began preparing for a safety class that he was to conduct at Exxon refinery. However, before he could enter the refinery, the keg had to be removed from his truck as the refinery prohibited the presence of beer kegs on its premises. Because no one else was present at the Safety Council at that time of the morning, Mr. Cade attempted to remove the keg from the bed of his truck alone. It is undisputed that he had an accident and suffered personal injuries while attempting to remove the keg. Due to his inability to perform his pre-accident job, the Safety Council terminated Mr. Cade’s employment on June 27, 2001. Subsequently, the Louisiana Workers’ Compensation Corporation denied Mr. Cade’s claim for workers’ compensation benefits.

|3On October 23, 2001, Mr. Cade filed a disputed claim for compensation with the Office of Workers’ Compensation. After hearing the matter, the workers’ compensation judge found Mr. Cade was in the course and scope of his employment at the time of his accident and rendered judgment in his favor, awarding him workers’ compensation benefits, as well as penalties and attorney’s fees. The Safety Council and the Louisiana Workers’ Compensation Corporation appeal that judgment, asserting that the workers’ compensation judge erred in finding that Mr. Cade was in the course and scope of his employment at the time of his accident and in awarding penalties and attorney’s fees. Mr. Cade answered the appeal, seeking additional attorney’s fees on appeal.

COURSE AND SCOPE OF EMPLOYMENT

An injury is compensable under the Louisiana Workers’ Compensation Act if it results from an accident arising out of and in the course of employment. Davis v. St. Tammany Parish School Board, 00-2860, p. 3 (La.App. 1 Cir. 2/15/02), 808 So.2d 826, 828. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Williams v. Wal-Mart Stores, Inc., 2000-1347, p. 5 (La.App. 1 Cir. 9/28/01), 809 So.2d 294, 298. Factual findings in a workers’ compensation case are subject to the manifest error standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556.

In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880, 882 (La.1993). Where there are two permissible views of |4the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880, 882 (La.1993). Thus, “[i]f the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Herein, Mr. Cade testified that he attended the crawfish boil from approximately 4:20 p.m. until 5:45 p.m. on May 4, 2001. He testified that, after the crawfish boil, Mr. Beoubay asked him to take the keg home four or five times over a fifteen to twenty minute period. Mr. Cade stated that Mr. Beoubay did not ask him at first if he wanted the keg, rather Mr. Beoubay asked him to take the keg. Mr. Cade testified that he told Mr. Beoubay he would not take the keg because he did not drink, had no use for the keg, and did not want it in the back of his truck. Mr. Beoubay began to get irritated when Mr. Cade continued to refuse. Mr. Cade stated that he felt threatened because of Mr. Beoubay’s tone of voice and because Mr. Beoubay became more demanding. Mr. Cade testified that Mr. Beoubay persisted, and Mr. Cade finally took the keg because he felt his job was threatened if he continued to refuse. Mr. Beoubay was one of Mr. Cade’s supervisors at the time.

Mr. Cade testified further that, during these conversations, he told Mr. Beoubay that he would not return the keg to Catering Kegs on Monday because he would be on vacation that day and did not want to return it on his day off. He returned to work on Tuesday, but forgot a part of the keg mechanism at home. Therefore, he did not return the keg on Tuesday. On Wednesday, Mr. Cade punched in at 5:30 a.m., loaded the equipment | ¡^necessary to teach a class at Exxon into his truck, and pushed the keg to the back of his truck. The keg began to tip over, and Mr. Cade grabbed it, lost his balance, and fell on top of the keg, injuring himself. Mr. Cade reported the accident when he returned to the Safety Council after completing his training class at Exxon. At the time, he was experiencing pain in the right side and shoulder.

Van Kirsh Edmonson, who was Mr. Cade’s immediate supervisor at the time of the accident, confirmed Mr. Cade’s testimony. Specifically, Mr. Edmonson testified that Mr. Beoubay asked Mr. Cade to take the keg home and enjoy it; that Mr. Cade indicated that he did not like nonalcoholic beer; and that, ultimately, Mr. Cade unwillingly took the keg.

Mr. Beoubay testified that, at the end of the crawfish boil, he was assisting in the removal of tables and chairs from the area of the crawfish boil when a Catering Kegs representative asked if anyone wanted to take the keg of non-alcoholic beer home as it remained approximately one-half full. Mr. Beoubay asked Mr. Cade and other Safety Council employees if anyone wanted to take the keg home to consume the remaining contents. Everyone, including Mr. Cade, refused. Later, Mr. Beoubay saw Mr. Cade again and offered him the keg a second time stating, “Bubba [Cade], you sure you don’t want to take this keg.” Mr. Cade replied, “I’ll put it in my truck, take it home and my neighbors and I will drink the rest of it.” Mr. Cade agreed to return the keg to Catering Kegs the following Tuesday.

Herein, there are two permissible views of the facts. The workers’ compensation judge made the factual determination that Mr. Cade took the keg at the request and instruction of his employer; therefore, he was in the course and scope of his employment at the time of his accident. This factual determination is reasonable in light of the evidence in the record, including |fievidence that.Mr. Cade did not take the keg for his personal use. Therefore, the workers’ compensation judge’s determination that Mr. Cade was in the course and scope of his employment at the time of his accident and injury is not manifestly erroneous.

PENALTIES AND ATTORNEY’S FEES

The Safety Council and the Louisiana Workers’ Compensation Corporation next assert that the workers’ compensation judge erred in awarding Mr. Cade penalties in the sums of $2,000 for the failure to timely pay indemnity benefits, and $2,000 for the failure to timely pay medical benefits, and erred in awarding attorney’s fees in the sum of $4,000.

The Workers’ Compensation Act provides for the assessment of penalties and attorney’s fees for failure to pay benefits timely where the claim for benefits is not reasonably controverted. LSA-R.S. 23:1201. A workers’ compensation judge’s award of penalties and attorney’s fees under LSA-R.S. 23:1201 is a factual determination and should not be disturbed on appeal unless clearly wrong. Augustus v. St. Mary Parish School Board, 95-2498, pp. 12-13 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1154.

In this case, it is undisputed that the employer’s failure to pay benefits to Mr. Cade was based solely on the statement of Mr. Beoubay, its vice president of operations. No effort was made to obtain Mr. Cade’s statement or the statements of others present at the crawfish boil prior to refusing benefits. Considering the limited information that the Safety Council chose to rely upon in refusing to pay benefits to Mr. Cade, we cannot say that the workers’ compensation judge manifestly erred in awarding penalties and attorney’s fees to Mr. Cade.

Finally, Mr. Cade answered the appeal, seeking an increase in attorney’s fees for litigating this appeal. An increase in attorney’s fees in |7workers’ compensation cases is generally allowed when the defendant appeals and obtains no relief on appeal, the appeal necessitates additional work on the part of appellee’s attorney, and the appellee properly requests such relief. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736, 740 (La.App. 1 Cir.), writ denied, 553 So.2d 466 (La.1989). The foregoing conditions are present in this appeal. Mr. Cade’s attorney expended time and effort in preparing a brief in this appeal and in participating in oral argument. Accordingly, an award of additional attorney’s fees in the sum of $2,000 is warranted.

CONCLUSION

For the foregoing reasons, we amend the judgment of the Office of Workers’ Compensation to award Mr. Cade additional attorney’s fees in the sum of $2,000 on appeal with legal interest from date of this judgment until paid, and we affirm the judgment, as amended. Costs on appeal are assessed to the Safety Council of Louisiana Capital Area and the Louisiana Workers’ Compensation Corporation.

AFFIRMED, AS AMENDED.


author: ^PETTIGREW, J.

text:
    William WARD v. J. Ray McDermott.
    No. 2003 CA 0448.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      William Ward, Napoleonville, in Proper Person.
    J. Louis Gibbens, New Iberia, for Defendant-Appellee J. Ray McDermott.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   ^PETTIGREW, J.

In this workers’ compensation action, the workers’ compensation judge (“WCJ”) rendered judgment granting summary judgment in favor of defendant, J. Ray McDermott, granting McDermott’s exception raising the objection of prescription; granting McDermott’s exception raising the objection of res judicata; and dismissing, with prejudice, the workers’ compensation claim of William Ward. Mr. Ward appeals from said judgment. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Mr. Ward was employed by McDermott as a welders helper on September 6, 2000. According to Mr. Ward, he was sandblasting when sand got into his eyes. Mr. Ward was attended to by a McDermott medic on the scene. Thereafter, on September 22, 2000, Mr. Ward was examined by Dr. L. Arnold Cloutier, Jr., who advised Mr. Ward that he could return to work and would not require additional medical care. Mr. Ward subsequently filed a claim for workers’ compensation benefits in District 5. A trial on the merits was scheduled for May 13, 2002. When Mr. Ward failed to appear for trial, the WCJ dismissed the claim, without prejudice, and afforded Mr. Ward thirty days to reinstate his claim. Mr. Ward neither reinstated his original claim in District 5, nor appealed the WCJ’s May 16, 2002 judgment dismissing his claim. Rather, on September 18, 2002, Mr. Ward filed a new claim for benefits in District 9 based on the same incident.

In response to Mr. Ward’s September 18, 2002 claim, McDermott filed a motion for summary judgment, an exception raising the objection of prescription, and an exception raising the objection of res judi-cata. A hearing on these matters was scheduled for December 16, 2002, and Mr. Ward was properly notified of same. According to the record, the parties participated in a telephone status conference on December 3, 2002, at which time a telephone pre-trial conference was scheduled for January 9, 2003, at 9:00 a.m. Thereafter, on December 6, 2002, McDermott filed a motion to continue the December 16, 2002 hearing. On December 9, 2002, the WCJ signed an order indicating that the hearing would be continued to “9th day of January, 2002 at 9:00 a.m.” Although the date of the hearing was obviously intended to be reflected as January 9, 2003, a copy | c.of the order containing the date of January 9, 2002, was mailed to Mr. Ward via certified mail, return receipt requested. Mr. Ward received same on December 10, 2002.

On January 9, 2003, McDermott’s motions were called for hearing before the WCJ. Mr. Ward failed to appear for the hearing, and the matter proceeded in his absence. Counsel for McDermott presented argument to the WCJ and introduced various exhibits into evidence. The WCJ took the matter under advisement and, on January 15, 2003; signed a judgment in McDermott’s favor granting McDermott’s motion for summary judgment, maintaining McDermott’s exceptions raising the objections of prescription and res judicata, and dismissing Mr. Ward’s claim with prejudice.

Mr. Ward has appealed from this judgment, assigning error to the WCJ’s dismissal of his claim. Mr. Ward raises the issue of whether he received proper notice of the January 9, 2003 hearing.

DISCUSSION

The prescriptive period for workers’ compensation claims is set forth in La. R.S. 23:1209 A as follows:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. [Footnote omitted.]

Thus, under La. R.S. 23:1209 A, claims are barred unless filed (1) within one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment for partial disability; or (3) one year from the time the injury develops if not immediately manifested, but no more than two years after the accident.

[ 4Pursuant to La.Code Civ. P. art. 931, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” Generally, in the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and those alleged facts are accepted as true. Mitchell v. Terrebonne Parish School Bd., 2002-1021, p. 5 (La.App. 1 Cir. 4/2/03), 843 So.2d 531, 533.

A party pleading prescription generally has the burden of proving it. Howard v. Trelles, 95-0227, p. 4 (La.App. 1 Cir. 2/23/96), 669 So.2d 605, 607, writ denied, 96-0712 (La.5/3/96), 672 So.2d 690. However, when a suit has prescribed on its face, the claimant has the burden of proving that the running of prescription was suspended or interrupted in some manner. Jonise v. Bologna Bros., 2001-3230, p. 6 (La.6/21/02), 820 So.2d 460, 464.

In the instant case, Mr. Ward’s disputed claim form, filed September 18, 2002, sets forth allegations that he was injured on September 6, 2000, while working as a welder for McDermott. Thus, on its face, Mr. Ward’s claim was prescribed. Accordingly, the burden shifted to Mr. Ward to establish that his claim was not prescribed.

On appeal, Mr. Ward, who has appeared in proper person throughout these proceedings, alleges he was “confused ... on [his] reporting date” because of the numerous changes in his court dates made by the WCJ. He asserts that he was under the impression that the January 9, 2003 court date was “only ... a trial date selection briefing with [his attendance] being optional.” Based on our review of the record, we agree with Mr. Ward’s position on the issue of notice.

According to the record, the hearing on McDermott’s motion for summary judgment and exceptions was scheduled for January 9, 2003. However, as previously indicated, the order signed by the WCJ on December 9, 2002, reflected a hearing date of January 9, 2002. This order was mailed to Mr. Ward via certified mail, return receipt requested and received by him on December 10, 2002. Moreover, on December 4, 2002, following a telephone status conference, Mr. Ward had already been notified that a telephone pre-trial conference was set for January 9, 2003, at 9:00 a.m. Given the | Runique facts and circumstances herein, and taking into consideration the fact that Mr. Ward was not represented by counsel, we find the notice to him regarding the January 9, 2003 hearing on McDermott’s motion and exceptions was defective. Thus, the WCJ’s judgment must be reversed and the matter remanded to give Mr. Ward the opportunity to be heard on the issues raised by McDermott.

CONCLUSION

For the above and foregoing reasons, the judgment of the WCJ is reversed and the matter is remanded for further proceedings consistent with this opinion. All costs associated with this appeal are assessed against McDermott.

REVERSED AND REMANDED.

MCCLENDON, J„ concurs.


author: JjTTTZSIMMONS, J.

text:
    Paul TAVELLA v. SAV-A-CENTER.
    No. 2003 CA 0458.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.
    Cassandra Krebs, Covington, Counsel for Plaintiff/Appellant Paul Tavella.
    James M. Taylor, New Orleans, Counsel for Defendant/Appellee Sav-A-Center.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   JjTTTZSIMMONS, J.

Plaintiff, Paul Tavella, filed a disputed claim for workers’ compensation against his employer, Sav-A-Center. Mr. Tavella alleged a work accident either injured him, or aggravated a pre-existing condition. The workers’ compensation judge found that Mr. Tavella failed to meet his burden of proof and held in favor of the employer, Sav-A-Center. Mr. Tavella appealed. We affirm.

In 2001, Mr. Tavella moved to Louisiana to take a job as a Sav-A-Center store manager. Before the alleged work accident, Mr. Tavella sought and received medical treatment for stress and anxiety associated with his job duties. The alleged work accident occurred on January 8, 2002. Mr. Tavella testified that on that day a district manager, behind closed doors, accused Mr. Tavella of having a sexual encounter, or affair, with a corporate employee. The alleged primary injury from this January 8th work incident was to Mr. Tavella’s mental well-being. After the January incident, Mr. Tavella continued to receive treatment for stress related to his job duties. In March of 2002, Mr. Tavella was demoted. Shortly thereafter, he took a medical leave of absence. When Mr. Tavella was unable to return to work after exhausting his paid leave company entitlements, he was terminated.

With one exception, a mental injury caused by job-related stress is not “considered a personal injury by accident arising out of and in the course of employment and is not compensable .... ” La. R.S. 23:1021(7)(b). Before the extent of Mr. Tavella’s alleged injury, or aggravation of a pre-existing injury, could become an issue, he had to prove that he came within the exception. He had to prove, by “clear and convincing evidence,” that the alleged injury resulted from “sudden, unexpected, and extraordinary stress related to the employment ....” La. R.S. 23:1021(7)(b). The analysis is conducted from the viewpoint of a reasonable man, not the experience of the particular plaintiff. Partin v. Merchant’s & Farmers Bank, 01-1560, p. 12 (La.3/11/02), 810 So.2d 1118, 1125. The focus is |3on the nature of the stress itself, not the employee’s belief in the “wrongfulness or unfairness” of the act or incident. Partin, 01-1560 at p. 13, 810 So.2d at 1126. On appeal, workers’ compensation cases are reviewed under the manifest error-elearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530, p. 4 (La.1/14/94), 630 So.2d 733, 737.

After a thorough review of the record, we cannot say that the workers’ compensation judge’s findings were manifestly wrong. This record provides a reasonable factual basis for the judge’s finding that Mr. Tavella failed to prove extraordinary stress by clear and convincing evidence. See La. R.S. 23:1021(7)(b); Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The determinative factor is not the employee’s subjective reaction to the incident. Irrespective of whether the rumors of an affair later proved to be true or false, the characterization of the incident is controlled by the reasonability of the reaction to a privately expressed managerial response to the possibility of sexual encounters between two company employees. Based on the judge’s findings, we agree that the incident did not qualify as a com-pensable work accident or injury. For these reasons, we affirm. The costs of the appeal are assessed to plaintiff, Mr. Tavel-la.

AFFIRMED.


author: LWHIPPLE, J.

text:
    Chad Anthony CHAMBERLAIN, by & Through His Curator, WILMER J. and His Undercuratrix, Beverly L. Chamberlain & Wilmer J. Chamberlain and Beverly L. Chamberlain v. John KENNEDY, Secretary of the Department of Revenue and Taxation, State of Louisiana.
    No. 2003 CA 0488.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      William A. Porteous, III, New Orleans, Counsel for Plaintiffs/Appellees, Chamberlain.
    David H. Hansen, Baton Rouge, Counsel for Defendant/Appellant, John Kennedy.
    Otha Curtis Nelson, Jr., Baton Rouge, Counsel for Defendant/Appellant, Louisiana Department of Revenue.

      Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   LWHIPPLE, J.

The Secretary for the Department of Revenue, State of Louisiana (referred to herein as “the Department”) challenges a judgment of the district court reversing the decision of the Louisiana Board of Tax Appeals (“the Board”). The district court’s judgment was based upon the court’s finding that prejudgment interest constitutes “damages,” and as such, is excluded from taxation as gross income pursuant to LSA-R.S. 47:46(2). For the following reasons, we dismiss the appeal as untimely.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Plaintiff, Chad A. Chamberlain, was seriously injured on June 13, 1987 while swimming in a Houma canal, when he encountered an electric field under water caused by disrepair of the navigation light wiring on the Houma Canal Bridge. His parents, Wilmer and Beverly Chamberlain, appellees herein, filed suit against the owner of the bridge, the State of Louisiana, Department of Transportation and Development, individually and on their son’s behalf. Judgment was awarded in favor of the Chamberlains and against the State of Louisiana, Department of Transportation and Development. See Chamberlain v. State, Department of Transportation and Development, 624 So.2d 874 (La.1993) and Chamberlain v. State, Department of Transportation and Development, 91-1942 (La.App. 1st Cir.3/11/94), 633 So.2d 871. The Louisiana Department of Transportation and Development subsequently paid the judgment.

The Louisiana Department of Revenue issued tax assessments to Chad, Wilmer, and Beverly Chamberlain for the 1994 tax year based on a referral from the United States Internal Revenue Service (“IRS”), which, pursuant to federal regulations, considered such prejudgment interest on the damage award as taxable income and not exempt as “damages on account of personal ^physical injuries or physical sickness.” Here, the Louisiana Department of Revenue merely “piggy-backed” the findings of the IRS assessments based on a Revenue Agent Report (RAR) received from the IRS.

Appellees did not report the prejudgment interest as income on their 1994 or 1995 state tax returns, believing that the interest received by them was part of their damage award and was exempt from taxation pursuant to LSA-R.S. 47:46(2). Ap-pellees disputed the state tax assessment and filed a petition with the Louisiana Board of Tax Appeals pursuant to LSA-R.S. 47:1431. After a hearing before the Board, the Board rendered a decision maintaining the assessments, citing LSA-R.S. 47:290 as authority for its decision. Appellees then filed a petition for judicial review with the district court pursuant to LSA-R.S. 47:1435, which sets forth the procedure for appellate review of decisions of the Board. After reviewing the entire record and hearing argument, the district court rendered judgment reversing the decision |4of the Board and issued written reasons for judgment. Specifically, the court concluded that prejudgment interest is not taxable income pursuant to LSA-R.S. 47:46, and that such interest expressly constitutes “an item of damages” pursuant to LSA-C.C. arts. 2000 and 2001.

The Department appeals the July 11, 2002 judgment of the district court, maintaining that the prejudgment interest awarded to appellees in them tort suit is taxable under Louisiana’s income tax law. Appellees filed an answer to this appeal, for the sole purpose of preserving their claims and challenges set forth before the district court.

DISCUSSION

Pursuant to Louisiana’s constitution and statutes, we review this case as a second court of appellate review. The Thirty-Second Judicial District Court is vested with the power of review of the decision of the Board of Tax Appeals herein. La. Const. Art V, § 16; LSA-R.S. 47:1434-35. Thereafter, the ruling of the district court is subject to appellate review by suspensive appeal to this court, in the exercise of appellate jurisdiction over civil matters. La. Const. Art. V, § 10; LSA-R.S. 47:1435.

Judicial review of a decision of the Board is rendered upon the record as made before the board and is limited to facts developed in the record and questions of law. The Board’s findings of fact should be accepted where there is substantial evidence in the record to support them and should not be set aside unless they are manifestly erroneous in view of the evidence on the entire record. Marathon Pipe Line Company v. Crawford, 2000-2753, p. 5 (La.App. 1st Cir.2/15/02), 808 So.2d 873, 877, writ denied, 2002-0804 (La.6/7/02), 818 So.2d 774; see also LSA-R.S. 47:1434. With regard to questions of law, the judgment of the Board should be affirmed if the Board has correctly applied the law and has adhered to the correct procedural standards. | B Secretary, Department of Revenue v. Calcasieu Refining Company, 2000-1735, p. 6 (La.App. 1st Cir.9/28/01), 809 So.2d 1023, 1028.

However, at the outset, we are required to determine whether this case is properly before us for appellate review. Louisiana Revised Statute 47:1435 addresses appeals involving tax board decisions and provides, as follows:

The district courts shall have exclusive jurisdiction to review the decisions or judgments of the board, and the judgment of any such court shall be subject to further appeal, suspensive only, in accordance with law. If a suspensive appeal is taken from a judgment of the district court no further bond need be posted and the bond originally posted remains in full force and effect to guarantee the payment of any tax, interest, and penalty until final decision of the court.
Upon such review, such courts shall have the power to affirm or, if the decision or judgment of the board is not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings as justice may require.

Pursuant to LSA-C.C.P. art. 2123, a suspensive appeal must be filed within either thirty days of the expiration of the delay for applying for a new trial or JNOV, or the date of mailing of notice of the court’s refusal to grant a timely application for new trial or judgment notwithstanding the verdict. The delay for applying for a new trial or a motion for JNOV is 7 days, exclusive of legal holidays, commending to run on the day after the clerk has mailed the notice of judgment. LSA-C.C.P. arts. 1971 and 1811. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit. Munden v. State, Division of Administration, 2001-2326, p. 4 (La.App. 1st Cir.5/9/03), 849 So.2d 639, 641, writ denied, 2003-1532 (La.10/03/03), 855 So.2d 310. A statute shall be construed to give meaning to the plain language of the statute, and courts may not extend statutes to situations that the legislature | finever intended to be covered. A.K. Dumin Chrysler-Plymouth, Inc. v. Jones, 2001-0810, p. 4 (La.App. 1st Cir.5/10/02), 818 So.2d 867, 870.

Here, the final judgment at issue on appeal was rendered by the district court on July 11, 2002. The Department did not file a motion for new trial or JNOV in this case. Further, the record reflects that notice of judgment was mailed on July 11, 2002, the same day the judgment was signed. Therefore, a suspensive appeal could be taken only within 30 days of the expiration of the delay for applying for a new trial or JNOV. Thus, in this case the delay for filing a JNOV or a new trial expired on July 22, 2002. In order to perfect a suspensive appeal, the Department would have had to file suit within 30 days of that date. It failed to do so. The Department filed a “Motion for Devolutive Appeal” on August 28, 2002, approximately forty-eight days after rendition of judgment and mailing of notice. Applying the plain language of the statute as written, the Department, failed to timely file a suspensive appeal in accordance with law.

The Department notes in its “Motion for Devolutive Appeal” that “[t]he Secretary of the Department of Revenue, State of Louisiana, is exempt from furnishing a bond, pursuant to LSA-R.S. 13:4581.” While the Department may be exempt from posting a bond herein, the Department is not exempt from the clear mandates set forth in LSA-R.S. 47:1435 that the judgment rendered by the district court below “shall” be subject to further appeal, “suspensive only.” Accordingly, in order to timely file an appeal, the | ./Department was required to take action within the applicable time period addressed in Article 2123.

Because this court lacks jurisdiction to review the July 11, 2002 judgment, we dismiss this appeal. See LSA-C.C.P. art. 2162.

CONCLUSION

For the above and foregoing reasons, we dismiss the appeal as untimely. Further, the answer to appeal is likewise dismissed, as moot. Costs of this appeal in the amount of $1,297.79 are assessed against appellants, John Kennedy, the Secretary for the Department of Revenue, and the State of Louisiana.

APPEAL DISMISSED; ANSWER TO APPEAL DISMISSED AS MOOT.

      . As set forth in 26 U.S.C.A. § 104, the Federal tax scheme provides an exemption from gross income for "the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness.” 26 U.S.C.A. § 104(2).

      . The RAR is a form issued to state revenue departments by the IRS indicating the findings of an audit conducted by the IRS.

      . Appellees had also received federal tax assessments from the IRS taxing the prejudgment interest awarded to them in the damage suit against the State of Louisiana. After initially contesting the assessments, appellees paid the federal tax assessment under protest.

      .Louisiana Revised Statute 47:46 provides, in pertinent part:
      Gross income does not include:

      (2) the amounts of any damages received (whether by suit or agreement) on account of personal injuries or sickness.

      . Louisiana Revised Statute 47:290 provides, in part:
      A. This Part is intended to conform the Louisiana individual income tax law with the United States Internal Revenue Code, except as otherwise expressly provided, in order to simplify the taxpayer’s filing of returns, reduce the taxpayer's accounting burden, and facilitate the collection and administration of these taxes.

      . Louisiana Revised Statute 13:4581 provides:
      The state, state agencies, political subdivisions, parish, and municipal boards or commissions exercising public power and functions, sheriffs, sheriffs' departments, and law enforcement districts, and the Patient's Compensation Fund, or any officer or employee thereof, shall not be required to furnish any appeal bond or any other bond whatsoever in any judicial proceedings instituted by or brought against them, that arise from activities within the scope and course of their duties and employment.


author: | ^CARTER, C.J. | j GUIDRY, J.,

text:
    Jeffrey B. GORE v. Carol Alisa McCaa GORE.
    No. 2003 CA 0491.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Michael A. Betts, Denham Springs, Counsel for Defendant/Appellant Carol Alisa McCaa Gore.
    Sherri L. Gregoire, Baton Rouge, Counsel for PIaintiff/Appellee Jeffrey B. Gore.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | ^CARTER, C.J.

An ex-wife appeals a portion of a judgment stemming from a hearing on a rule to compel the sale of the former matrimonial domicile and for contempt. Having reviewed the record before us, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

Jeffrey B. Gore and Carol Alisa McCaa Gore were divorced by a judgment rendered on October 6, 1999. Subsequent thereto, Mr. Gore filed a petition seeking to judicially partition the parties’ community property. At a hearing held on October 30, 2001, the parties agreed to several stipulations including an agreement to sell the matrimonial domicile to satisfy community obligations. Nonetheless, on May 17, 2002, Mr. Gore filed a rule to compel the sale of the former matrimonial domicile, to order that the home be vacated, for contempt, and for other ancillary relief.

In response to the rule, the trial court issued an order directing Ms. Gore to immediately sign “any and all documents necessary to effect the sale of the former matrimonial domicile” within twenty-four hours of her receipt of the order and to vacate the former matrimonial domicile in sufficient time to allow the purchase of the home or within fifteen days of her receipt of the order. The trial court further ordered that the proceeds from the sale of the home be placed in the registry of the court or in an interest-bearing account pending a hearing on the resolution of the community debts and financial obligations of the former spouses. Finally, the trial court ordered that Ms. Gore show cause at an expedited hearing why she should not be required to pay one-half of the closing costs relative to the sale of the home, be held in contempt of court and be required to reimburse Mr. Gore all costs and reasonable attorney fees incurred for filing the rule.

Following the expedited hearing, the trial court rendered a judgment decreeing that the parties were equally responsible for the payment of the closing 13costs associated with the sale of the home and ordered that Ms. Gore reimburse Mr. Gore a sum equal to her share of those costs. The trial court also cast Ms. Gore with payment of court costs totaling $23 and attorney fees in the amount of $500, payable to the law firm representing Mr. Gore. It is from those portions of the judgment that Ms. Gore appeals.

ASSIGNMENTS OF ERROR

Ms. Gore alleges that the trial court committed the following errors in the proceedings below:

I. Whether the trial court erred in finding Alisa Gore in contempt of court and ordering her to pay $500 in attorneys fees and costs of court, when there is no judgment from the trial and the record is devoid of anything which could be construed as contemptuous?
II. Whether the trial court erred by failing to set forth any factual basis for finding Alisa Gore in contempt of court?
III. Whether the trial court erred in ordering Mrs. Gore to sign the purchase agreement?
IV. Whether the trial court erred [in] holding that Alisa Gore must pay 1/2 of the closing costs from the sale of the community home?

DISCUSSION

In her first two assignments of error, Ms. Gore alleges that the trial court erred in finding her in contempt of court and ordering her to pay attorney fees in the amount of $500 and court costs. The judgment appealed from contains no finding that Ms. Gore was in contempt of court. Thus, this issue is not properly before us.

Without a finding of contempt, there is nothing to support the trial court’s assessment of $500 in attorney fees against Ms. Gore. Under Louisiana law, attorney fees are not allowed except where authorized by special statute or by Lcontract. Maggio v. Robinson, 31,913, pp. 4-5 (La.App. 2 Cir. 5/5/99), 741 So.2d 103, 107. We find no statutory basis for the award, nor does a contractual basis for the award appear in the record before us. We, therefore, reverse the award of $500 in attorney fees assessed against Ms. Gore. See Maggio, 31,913 at 4-5, 741 So.2d at 107.

As for the assessment of court costs against Ms. Gore, the party cast in judgment is generally taxed with costs, but the trial court has discretion to assess costs of a suit in any equitable manner. LSA-C.C.P. art. 1920; Griffin v. Louisiana Sheriff’s Auto Risk Ass’n, 99-2944, p. 38 (LaApp. 1 Cir. 6/22/01), 802 So.2d 691, 716, writ denied, 01-2117 (La.11/9/01), 801 So.2d 376. Since Mr. Gore ultimately prevailed in the judgment on his rule for the various aspects of the relief requested, we cannot say that the trial court abused its discretion in its assessment of costs.

In her third assignment of error, Ms. Gore contends the trial court erred in ordering her to sign documentation providing for the sale of the former matrimonial domicile. However, the judgment appealed from contains no such order. Thus, this issue is not properly before us.

In her final assignment of error, Ms. Gore questions the propriety of holding her liable for one-half of the closing costs associated with the sale of the home. She argues that Mr. Gore solely obligated himself to be responsible for the payment of the closing costs relative to the sale and that the obligation occurred after the regime of acquets and gains had been terminated, hence making the obligation separate in nature.

Mr. Gore executed an addendum to the purchase agreement on May 13, 2002, which stated: “[$]3,800 in buyers closing cost and prepaids to be paid by Jeff Gore from his proceeds of the sale of the home.” After Mr. Gore executed the addendum and before the sale was completed, he filed the rule on May 17, 2002, in |swhich he requested an ex parte order directing Ms. Gore to sign paperwork to close the sale on the home and stated therein:

Plaintiff shows that [he] has indicated his willingness to advance in fall the closing costs and seek reimbursement of one-half of same from the Court. Simply put, he is willing to gamble $1,900 on the chance that the Court will rule that the parties should have split the closing costs equally between themselves.

The trial court immediately issued an order on May 21, 2002, directing Ms. Gore to sign the paperwork necessary to effect the sale of the home. After Mr. Gore executed the addendum and the sale of the former matrimonial home was completed, the trial court ordered Ms. Gore to reimburse Mr. Gore for one-half of the closing costs. Ms. Gore appeals the portion of the judgment in which the trial court “stuck her” with one-half of the closing costs. However, she offers no argument in support of this contention other than to argue that the “Court had no authority to force this” on her.

After the termination of the community property regime, the principles governing co-ownership in indivisión apply to former community property that has not yet been partitioned. LSA-C.C. art. 2369.1; Cahill v. Kerins, 34,522, p. 8 (La.App. 2 Cir. 4/4/01), 784 So.2d 685, 691. Under Civil Code article 806, a co-owner of a thing held in indivisión is entitled to reimbursement from his co-owner in proportion to their shares if he has paid necessary management expenses. As the court noted in Cahill, jurisprudence interpreting article 806 is scarce. We believe that payment of closing costs in this case was a necessary expense incurred in order to sell the former community property at the desired price. Thus, we affirm the portion of the trial court judgment finding Ms. Gore liable for one-half of the closing costs.

CONCLUSION

For the foregoing reasons, the portion of the judgment of the trial court ordering Ms. Gore to pay attorney fees of $500 is reversed. The portions of the | (judgment assessing Ms. Gore with $23 in court costs and ordering her to pay Mr. Gore $1,900 as reimbursement for one-half of the closing costs on the sale of the former community property are affirmed. Costs of this appeal are to be shared equally by Mr. Gore and Ms. Gore.

AFFIRMED IN PART; REVERSED IN PART.

GUIDRY, J., dissents and assigns reasons.

| j GUIDRY, J.,

dissenting in part.

I believe the majority errs in affirming that portion of the trial court’s judgment that holds Ms. Gore liable for one-half of the closing costs incurred to sell the former matrimonial home. The majority found the closing costs to qualify as a necessary expense under La. C.C. art. 806. However, the obligation to pay closing costs relative to the sale of the former matrimonial domicile arose as a result of the unilateral action of Mr. Gore without consultation or notice to Ms. Gore, and without any negotiation over this payment with the buyers. I cannot agree that under the specific facts of this case that the payment without negotiation of all the closing costs by the Gores constituted a necessary management expense. Therefore, I respectfully dissent from that portion of the majority’s opinion.

      . The order and judgment also addressed other ancillary matters that are not at issue in the appeal before us.


author: | ..CARTER, C.J.

text:
    In re FERRARA FIRE APPARATUS, INC.
    No. 2003 CA 0446.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.
    Franklin J. Foil, Brenda H. Verbois, Baton Rouge, for Appellant, Ferrara Fire Apparatus, Inc.
    R. Gray Sexton, Maris E. LeBlanc, Kathleen M. Allen, Baton Rouge, for Ap-pellees, Louisiana Board of Ethics.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | ..CARTER, C.J.

This case involves an appeal from a decision of the Louisiana Board of Ethics (Board), holding that Ferrara Fire Apparatus, Inc. (FFA) violated a provision of the Louisiana Code of Governmental Ethics (Ethics Code). After a thorough review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 1, 2001, FFA placed a bid with the Houma, Louisiana, Fire Department for the manufacture of a fire truck. On February 14, 2001, Fire Chief Brian Hebert and Captain Paul Breaux traveled with an FFA salesman on a one-day trip to Alma, Arkansas, for inspection of a similar fire truck to determine if it met the fire department’s specifications and standards. FFA paid the $710 cost for Hebert’s and Breaux’s airfare as well as $65 for use of a rental car. After a private investigation, the Board ordered that a public hearing be conducted for the purpose of exploring whether FFA violated the Ethics Code (specifically LSA-R.S. 42:1117) by providing the airfare and/or rental car for Hebert’s and Breaux’s day trip to Arkansas when Hebert and Breaux were prohibited by the Ethics Code (specifically LSA-R.S. 42:1115) from receiving gifts or gratuities.

At the public hearing on November 14, 2002, counsel for the Board and FFA submitted a joint stipulation of facts to the effect that: (1) at all pertinent times, Brian Hebert was the Fire Chief and Paul Breaux was the Captain of the Houma Fire Department; (2) on February 1, 2001, the Houma Fire Department received a bid for fire trucks from FFA; (3) on February 14, 2001, while FFA’s bid was pending, FFA provided airfare ($710 value) and a rental car ($65 value) for Hebert and Breaux to travel on a one-day trip to Arkansas to view FFA’s fire trucks; and (4) in April 2002, Hebert and | oBreaux signed consent letters admitting violations of the Ethics Code by receiving airfare and use of a rental car from FFA, a potential vendor of fire trucks for the Houma Fire Department. After considering the stipulations, the testimony of FFA owner and president, Chris Ferrara, and oral arguments, the Board issued an opinion on December 12, 2002, concluding that FFA had violated the Ethics Code. The Board imposed a $500 fine against FFA, with all but $100 suspended, conditioned upon FFA’s future compliance with the Ethics Code.

FFA appealed the decision of the Board, arguing the Board erred in finding the trip was a “gift” within the meaning of LSA-R.S. 42:1115, and the Board erred in failing to find an exception to the definition in the Ethics Code for a “thing of economic value” because the trip was a “promotional item having no substantial resale value.” The essential issue for our review is whether FFA violated LSA-R.S. 42:1117 by providing airfare and rental car use for the fire chief and the captain of the Houma Fire Department while the fire department was considering a bid by FFA for the sale of fire trucks.

ANALYSIS

Judicial review of the decision of the Board is conducted in accordance with the Louisiana Administrative Procedure Act (APA). See LSA-R.S. 42:1143. The APA specifies that judicial review shall be confined to the record, as developed in the administrative proceedings. LSA-R.S. 49:964(F). The reviewing court may reverse or modify the agency decision if substantial rights of the appellant are prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the |4agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or an abuse of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. LSA-R.S. 49:964(G); Schmitt v. Louisiana Board of Ethics, 00-0341 (La.App. 1 Cir. 3/28/01), 808 So.2d 524, 525. On legal issues, the reviewing court gives no special weight to the findings of the administrative tribunal, but conducts a de novo review of questions of law and renders judgment on the record. Id.

Pursuant to our standard of review, we have made our own determinations of fact and conclude the evidence supports a finding that FFA violated LSA-R.S. 42:1117. In conducting this review, we have given due regard to the Board’s credibility determinations. Although we feel, as did the Board, that FFA’s violation was minor, we are constrained by the clear language of the Ethics Code. Thus, we have determined that the findings of fact and conclusions of law set forth in the Board’s December 12, 2002 written reasons for decision are correct.

LSA-R.S. 42:1117 provides, in pertinent part: “No ... person shall give ... to any public servant ... any thing of economic value which such public servant ... would be prohibited from receiving by any provision of this Part.” It is undisputed that Hebert and Breaux admitted a violation of the Ethics Code when they accepted the airfare and use of the rental car from FFA while the fire department was considering FFA’s bid for the sale of fire trucks. Therefore, the only issue in this case is whether the payment for out-of-state transportation was a “thing of economic value.”

A thing of economic value is defined in the Ethics Code as: “money or any other thing having economic value, except promotional items having | Rno substantial resale value; food, drink, or refreshments consumed by a public servant, including reasonable transportation and entertainment incidental thereto, while the personal guest of some person [.]” (Emphasis added.) LSA-R.S. 42:1102(22)(a). FFA argues that the airfare and use of car rental was a promotional item having no substantial resale value because the one-day trip to Arkansas was for the sole purpose of promoting the FFA fire trucks. We find no merit to this argument because of the significant price ($710) FFA paid for the roundtrip airfare, which certainly had economic value. Furthermore, we do not consider such roundtrip airfare to constitute a promotional item or reasonable transportation within the meaning of the statute.

We likewise find no merit to FFA’s argument that providing transportation to Hebert and Breaux was not a “gift” within the meaning of the Ethics Code. The Ethics Code does not specifically define gift; however, the generally prevailing meaning of gift is something that is voluntarily transferred by one person to another without compensation. See LSA-C.C. art. 11. See also Merriam-Webster’s Collegiate Dictionary, Tenth Edition, 1995, p. 491. FFA admitted that it voluntarily provided the transportation to Hebert and Breaux, and FFA was not compensated for the cost of the transportation. Therefore, the airfare and car rental costs were “gifts” and were specifically prohibited by the Ethics Code when, in this case, the fire | fichief and the captain knew that FFA was seeking to obtain a business relationship with the fire department.

The primary objective of the Ethics Code is to prevent not only the actuality of conflicts of interest, but also to prevent the occurrence of those situations that tend to create a perception of conflicts of interest. In re Beychok, 495 So.2d 1278, 1281 (La.1986). A conflict of interest is a situation that would require an official to serve two masters, presenting a potential, rather than an actuality, of wrongdoing. The wrongdoing does not have to occur in order for a prohibited conflict to exist. Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752, 756 (La.1983).

While it appears to us that FFA is guilty of no actual wrongdoing, and its actions did not constitute an egregious violation, the one important objective of the Ethics Code (to prevent potential conflicts of interest) was violated when FFA paid for the fire chief and the captain to travel out-of-state to view a fire truck while the fire department was considering purchasing a fire truck from FFA. We note that in most instances, if a public entity were not involved, FFA’s action would have been a legitimate business endeavor. However, with public servants and entities, much more stringent rules apply to business dealings. What would normally be a proper and legitimate business activity can be in technical violation of the Ethics Code. FFA’s action created a public perception of a conflict of interest, 17which is what the Ethics Code is designed to prevent. See In re Marceaux, 96-1215 (La.App. 1 Cir. 2/14/97), 689 So.2d 670, 673.

Accordingly, we find no error in the Board’s decision, and we conclude that the decision is consistent with the policy and goals of the Ethics Code. The decision of the Board is hereby affirmed. Costs of this appeal are assessed to Ferrara Fire Apparatus, Inc.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . We recognize that the legislature made a specific exception regarding "reasonable transportation" when "organized primarily for educational or for informational purposes, including on-site inspections, ... to any point within the boundaries of this state,” but this exception is "with reference to legislators and employees in the legislative branch of state government only[.]” (Emphasis added.) LSA-R.S. 42:1102(22)(d)(i). Hebert and Breaux were not legislators or employees in the legislative branch of state government, and the transportation was not within the boundaries of Louisiana. Thus, the "reasonable transportation" exception does not apply in this situation.

      . LSA-R.S. 42:1115, provides in pertinent part: "No public servant shall solicit or accept ... any thing of economic value as a gift or gratuity from any person ... if such public servant knows or reasonably should know that such person ... [h]as or is seeking to obtain contractual or other business or financial relationships with the public servant's agency,” or "[h]as substantial economic interests which may be substantially affected by the performance or nonperformance of the public [servant's] official duty.”


author: |,GAIDRY, J.

text:
    Sharon HIGGINBOTHAM, as Natural Tutrix of Her Minor Child, Jacklyn Higginbotham v. COMMUNITY CHRISTIAN ACADEMY, INC. and Shelter Mutual Insurance Company.
    No. 2003 CA 0462.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Sean D. Fagan, Baton Rouge, Counsel for Plaintiff/Appellant Sharon Higginbotham, as Natural Tutrix of her Minor Child, Jaeklyn Higginbotham.
    Craig J. Fontenot, Baton Rouge, Counsel for Defendant/Appellee Community Christian Academy, Inc. and Shelter Mutual Insurance Company.

      Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   |,GAIDRY, J.

In this suit arising from personal injuries received on a school playground, plaintiff appeals a trial court judgment granting-defendant’s motion for summary judgment and dismissing plaintiffs suit with prejudice. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Sharon Higginbotham, filed this suit for damages after her daughter, Jacklyn Higginbotham, was injured while playing on the playground at Community Christian Academy. On March 22, 2001, Jacklyn, a fourth grade student at Community Christian Academy, was playing on the school’s playground during recess. Prior to the end of recess, Jacklyn was being pushed on the merry-go-round by classmates. When the bell rang, signaling the end of recess, Jacklyn got off of the merry-go-round and, while running back to her classroom, ran directly into a four-by-four wooden post. The school notified Sharon Higginbotham, who took Jacklyn to the hospital, where a head CT scan revealed a skull fracture.

Sharon Higginbotham filed suit against both Community Christian Academy and their insurer, Shelter Mutual Insurance Company, alleging that the defendants are liable for Jacklyn’s injuries because they failed to properly maintain the school premises and failed to properly supervise the children on the playground. Higginbotham claims that Jacklyn was being spun rapidly on the merry-go-round by two other children, which was against school rules, for several minutes before recess ended, and when she got off of the merry-go-round to return to class, she became dizzy and ran into the post. Higginbotham claims that had the students been properly supervised, the children would not have been allowed to spin Jacklyn to the point that she became dizzy and disoriented. Higginbotham also claims that |sthe four-by-four post that Jacklyn struck had not been used for any purpose in several years and was an unreasonably dangerous condition on the school premises.

Defendants filed a motion for summary judgment, alleging that they were not liable for Jacklyn’s injuries since the injuries were not caused by an unreasonably dangerous condition or a failure to provide adequate supervision. After a hearing, the trial court granted defendants’ motion for summary judgment, noting that even if the wooden post had no utility whatsoever, there was no evidence that it created an unreasonable risk of harm and constituted a defect in the premises, because the pole was perfectly visible and had been in that location for years. The trial court also noted that there was no evidence that Jacklyn had been dizzy, but even if she had been, there was no proof of a causal connection between any lack of supervision and Jacklyn’s injuries, and therefore Higginbotham could not recover for inadequate supervision.

Higginbotham appealed the trial court judgment granting defendants’ motion for summary judgment and dismissing her suit with prejudice, making the following assignments of error:

1. The trial court erred in finding that an unused four-by-four post left on a children’s playground did not present an unreasonable risk of harm.
2. The trial court erred in finding that there was no question of material fact concerning the utility of the four-by-four post.
3. The trial court erred in finding that there was no question of material fact concerning the adequacy of the supervision afforded the children on the playground.
4. The trial court erred in finding that the school did not breach its duty to protect students like Jacklyn from the unreasonable risk of harm presented by the post.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the mover and is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party “submit evidence showing the existence of specific facts establishing a genuine issue of material fact.” See Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. arts. 966 and 967.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

| Inadequate Stipervision

The Louisiana Supreme Court set forth the standard for evaluating a claim of inadequate supervision in Wallmuth v. Rapides Parish School Board, 01-1779 p. 7 (La.4/3/02), 813 So.2d 341.

1. Was the conduct of which the petitioner complains a cause-in-fact of the resulting harm?
2. What, if any, duties were owed by the respective parties?
3. Were the requisite duties breached?
4. Was the risk, and the resulting harm, within the scope of protection afforded by the duty breached?
5. Were actual damages sustained?

Teachers are answerable for the damage caused by their scholars, while under their superintendence. However, responsibility only attaches when the teachers might have prevented the act which caused the damages, and have not done it. La. C.C. art. 2320, Wallmuth at 346.

In this case, Margaret Wilson, principal of Community Christian Academy, testified at her deposition that it was against school rules for a child who was not riding the merry-go-round to push another child on the merry-go-round or for a child to push another child very fast on the merry-go-round. If she had seen either of these activities taking place, she testified that she would have stopped it. Furthermore, she would not have allowed one of the boys involved to push Jacklyn on the merry-go-round at all. Mrs. Wilson stated that the reason for the playground rules is the children’s safety.

Mrs. Wilson had seen Jacklyn on the merry-go-round earlier during recess that day, but had left the playground to go to a classroom before recess was over. At the time she saw Jacklyn, she only recalls seeing one of | ¿the boys nearby, and could not recall whether he was pushing her on the merry-go-round or not. Mrs. Wilson did not see Jacklyn hit the post, and did not know of any other teacher at, the school who saw Jacklyn hit the post or saw Jacklyn after she hit the post.

Jacklyn testified that on the day of the accident, she and the two boys had been taking turns pushing each other on the merry-go-round throughout recess. The two boys had been running alongside the merry-go-round, spinning her fast, for about five minutes before the bell rang. She states that no teacher ever told them to stop what they were doing. They stopped spinning her when the bell rang, and she tried to run to class, but was dizzy and ran into the post. No teachers were around, so the two boys who had been pushing her on the merry-go-round came and helped her to the secretary’s office. When she got to the secretary’s office, Jacklyn told the secretary that she had gotten dizzy and ran into the post.

Sharon Higginbotham testified at her deposition that Jacklyn had told her that when she got off of the merry-go-round her head told her to go one way, but her legs went the other, and she hit the post.

According to Mrs. Wilson’s testimony and the pictures of the playground attached to the depositions, the post is not situated in between the merry-go-round and the school; it is actually off to the side. Jacklyn would have been running in the wrong direction to get to her classroom when she hit the post.

Jacklyn’s testimony that the boys were pushing her fast on the merry-go-round while running alongside, Mrs. Wilson’s testimony that she would not have allowed this if she had seen it for safety reasons, and Jacklyn’s testimony that she ran into the pole because she was dizzy from spinning fast on the merry-go-round, create an issue of fact as to whether there was [7adequate supervision in this case and whether the lack of supervision caused Jacklyn’s injuries. Summary judgment is inappropriate, on the issue of inadequate supervision.

■Defect on Premises

Louisiana Civil Code article 2317.1 provides for liability of an owner or custodian of a thing for damage occasioned by its ruin, vice, or defect. Under article 2317.1, liability is only imposed upon the owner or custodian of a thing if all three of the following are proven:

1. He knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage;
2. The damage could have been prevented by the exercise of reasonable care; and
3. He failed to exercise such reasonable care.

In order to qualify as a defect in a thing, an imperfection must constitute a dangerous condition or pose an unreasonable risk of harm. Vigh v. State Farm Fire & Cas. Ins. Co., 97-0381 (La.App. 4 Cir. 11/19/97), 706 So.2d 480. There is no fixed rule for determining whether a thing presents an unreasonable risk of harm. In making this determination, the trier of fact must balance the gravity and risk of harm against the utility of the thing. As part of this balance, the court should consider a broad range of social, economic, and moral factors, including the cost to defendant to avoid the risk and the social utility of plaintiffs conduct at the time of the accident. Shavers v. City of Baton Rouge, 00-1682 (La.App. 1 Cir. 9/28/01), 807 So.2d 883, appeal denied, 01-02848 (La.1/4/02), 805 So.2d 207. Simply put: the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

| sThis balancing test is not a simple rule of law which can be applied mechanically to the facts of the ease. Because of the plethora of factual questions and other considerations involved, the issue necessarily must be resolved on a case-by-case basis. Id.

In this case, testimony conflicted concerning the post’s use. Jacklyn and Sharon Higginbotham testified that they had not seen the post used for any purpose, including volleyball and tetherball, since at least 1997 or 1998. Furthermore, they testified that they had not seen any hooks, nails, eye bolts, or other means for attaching a volleyball net to the post, since at least 1998. Mrs. Wilson testified that at the time of the accident, the post was used occasionally along with a mobile pole for volleyball. There were two mobile poles used for volleyball set up on a side playground, and Mrs. Wilson could not state how often the post involved in this accident was actually used for volleyball. She also stated that approximately a year or two before Jacklyn’s accident, a teacher had used the post for tetherball for a short period of time. The younger children at the school also used the pole occasionally as a home base for playing tag.

Mrs. Wilson testified that she is aware that children often run into things for no apparent reason; in fact, one child at her school had run into a brick column and broke a tooth, and another had run into the wall of the school.

The trial court’s initial statement that, even if the pole served no purpose at all, it was not unreasonably dangerous because it was visible, is incorrect. Under the balancing test, a pole with no social value or utility cannot outweigh, and thus justify, its potential harm to others. While we do not decide this pole’s social value or utility, we do find that the conflicting testimony about the pole’s use creates an issue of fact concerning whether |9the pole presented an unreasonable risk of harm. Summary judgment was inappropriate on this issue.

DECREE

We reverse the judgment of the trial court granting defendants’ motion for summary judgment and dismissing plaintiffs suit. Costs of this appeal are assessed to defendants.

REVERSED.

FOIL, J., concurs in the result.


author: RGUIDRY, J.

text:
    FIRE PROTECTION DISTRICT SIX v. CITY OF BATON ROUGE DEPARTMENT OF PUBLIC WORKS and Fred E. Raiford, III.
    No. 2003 CA 1205.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      H. Craig Davidson, Jr., Baton Rouge, Counsel for Plaintiff-Appellant Fire Protection District Six.
    Michael ■ E. Ponder, Parish Attorney, Lea Anne Batson, Special Assistant Parish Attorney, Baton Rouge, Counsel for Defendants-Appellees City of Baton Rouge, Department of Public Works and Fred E. Raiford, III.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   RGUIDRY, J.

The East Baton Rouge Parish Fire Protection District Six (District Six) appeals a judgment of the trial court denying its petition for a writ of mandamus directed to the Department of Public Works for the City of Baton Rouge (DPW) and its director, seeking the revocation of an alleged unlawfully issued occupancy permit.

FACTS AND PROCEDURAL HISTORY

On November 11, 2002, a notice of inspection for an occupancy permit was issued to Triple T & D Investment LLC (Triple T & D) for a commercial modular building located at 6810 Joor Road in Baton Rouge, Louisiana, within an area regulated by District Six. An occupancy permit was issued a short time after the issuance of the notice. Prior to the issuance of either the notice or the permit, District Six notified DPW of its concerns regarding fire safety and response defects at the location and its refusal to approve the granting of a permit to Triple T & D because of these concerns. As a result of DPW’s action in issuing the permit without District Six approval, District Six filed a petition for a writ of mandamus against DPW and its director to force DPW to revoke the allegedly improvidently issued permit. Following a hearing, the trial court denied the request for the writ, and this appeal followed.

ASSIGNMENT OF ERROR

District Six maintains that the trial court committed legal error in denying its petition for a writ of mandamus.

APPLICABLE LAW

Article 3863 of the Louisiana Code of Civil Procedure provides that a “writ of mandamus may be directed to a public officer to compel the performance of a [¿¡ministerial duty required by law....” However, as indicated in La. C.C.P. art. 3862, use of this extraordinary remedy is limited to situations “where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice[J” Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. The remedy is not available to command the performance of an act that contains any element of discretion, however slight. Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4 (La.App. 1st Cir.2/14/97), 690 So.2d 150, 153, writ denied, 97-0599 (La.4/18/97), 692 So.2d 455. Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty that ought to be performed. It never issues in doubtful cases. Wiginton v. Tangipahoa Parish Council, 00-1319, p. 4 (La.App. 1st Cir.6/29/01), 790 So.2d 160, 163, unit denied, 01-2541 (La.12/7/01), 803 So.2d 971. It is noted that the Louisiana Legislature has deemed actions of a city involving building codes and the issuance of permits to be discretionary. La. R.S. 33:4771(2) & (5) and 33:4773(D); Raburn v. Williams, 34,718, p. 6 (La.App. 2nd Cir.5/9/01), 786 So.2d 955, 958.

Although the granting of a writ of mandamus is considered improper when the act sought to be commanded contains any element of discretion, it has, nevertheless, been allowed in cases to correct an arbitrary and capricious abuse of discretion by public boards or officials. State ex rel. Torrance v. City of Shreveport, 231 La. 840, 846, 93 So.2d 187, 189 (1957); State ex rel. People’s State Bank v. Police Jury of Red River Parish, 154 La. 389, 396, 97 So. 584, 587 (1923); Louisiana Department of Treasury, Board of Trustees of State Employees Group Benefits Program v. Williams, 451 So.2d 1308, 1311 (La.App. 1st Cir.1984). Generally, the action of a governmental body is arbitrary, capricious and unreasonable if it bears no relation to the health, safety, or general welfare of the public. Clark v. City of Shreveport, 26,638, p. 9 (La.App. 2nd Cir.5/10/95), 655 So.2d 617, 622. It has also been noted that the violation of a specific city ordinance, rule or regulation that prohibits such action can constitute an abuse of discretion. See Raburn, 34,718 at 6-7, 786 So.2d at 959.

DISCUSSION

In the matter before us, District Six alleges that DPW violated Section 8.5 of the Code of Ordinances of the City of Baton Rouge and Parish of East Baton Rouge (City/Parish Code of Ordinances). That ordinance provides in paragraphs e |sand f respectively that no building permit shall be issued without the preliminary approval of the fire official and that fire flow tests shall be witnessed by the fire official prior to the issuance of a certificate of occupancy. Assistant Fire Chief Kevin Sanchez of District Six testified that he was the designated fire official at District Six responsible for approving building permits and witnessing fire flow tests.

Sanchez stated that he neither approved nor witnessed fire flow tests prior to DPW’s issuance of an occupancy permit to Triple T & D. He first became aware that Triple T & D was seeking to place a building on property located at 6810 Joor Road in May 2001 when building plans and an application for approval were sent to him. Sanchez did not grant approval because the location did not meet fire safety requirements. Specifically, he pointed out the requirements by the Property Insurance Association of Louisiana (PIAL) that a water source capable of supplying 250 gallons of water per minute for a minimum of two hours be available and by Section 8.5(c) of the City/Parish Code of Ordinances that the maximum distance from the most remote exterior point to the nearest fire hydrant be no greater than 500 feet. Sanchez explained that failure to comply with these standards not only jeopardized the class one PIAL rating held by District Six, but it could also result in an increase in the premiums paid by homeowners who live in | fithe District Six area and increase the danger posed to District Six firefighters responding to a fire at the location. He recalled that he was not able to locate an alternate water source nor was one presented or suggested to him by Triple T & D.

Sanchez stated that although he did not approve the initial application, nor was his approval further sought in connection with the later application for an occupancy permit, he nevertheless noticed that in March 2002, a building had been placed on the site at 6810 Joor Road, without his knowledge or approval. He testified that he contacted DPW to notify the building officials that the structure was there in violation of city ordinances and to request that no permit be issued without the necessary approval of the fire district. In November 2002, however, Sanchez testified that he noticed that the utilities for the structure had been turned on, despite his communications with DPW. He testified that he then visited the site in the company of the District Six fire chief and an investigator, where they observed commercial activity taking place within the building, including the use of a time clock and several computer stations. Photographs of their observations were submitted into evidence at trial. Sanchez acknowledged that the approval of the fire district was not required for a permit to be issued to a residential building. See Section 8.5(j) of the City/Parish Code of Ordinances. However, he testified that he did not observe a bedroom in the structure in question.

Peter Newkirk, a building official with DPW, testified that District Six’s inspection and approval of the building at issue was not necessary because the building was a residential structure, not commercial. Newkirk acknowledged that he visited the building in question in November 2002 and observed commercial activity, such as the taking of load tickets, occurring within the structure relative to a dirt hauling business. He testified that the structure was a modular-type construction consisting of a kitchen, offices, a daycare area and a vacant room. Newkirk explained that he nonetheless considered the building to be a residential 17structure because he only observed commercial activities taking place in the front part of the building and no place else and because the application for the permit had stated that it was for a residential structure.

Newkirk testified that he could not recall DPW ever revoking an occupancy permit and that the decision to do so was discretionary. He also stated that subsequent to his visit to the building in November 2002, he was not provided with any other information to indicate that the building was being used as a residential structure, but he was provided with additional information to indicate that it was being used as a commercial establishment based on a Natural Resources permit that was received for the location.

Based on the evidence in the record, we cannot say that DPW arbitrarily and capriciously abused its discretion in issuing the occupancy permit in dispute. As asserted by DPW, the agency was presented with an application for a residential structure, which does not require the approval of the fire official from the local fire protection district prior to the issuance of the permit. Further, although District Six did present evidence of commercial activity taking place within the structure and New-kirk even admitted to having observed commercial activity taking place at the site, there was no indication or proof that DPW had knowledge or evidence of the commercial activity prior to the issuance of the permit. Specifically, we note that the photos taken by the investigator for District Six and Newkirk’s visit to the site occurred after the issuance of the permit.

Thus, we cannot say that at the time DPW issued the permit, it violated City/Parish Code of Ordinances in doing so, and as such, it cannot be said that it arbitrarily and capriciously abused its discretion in issuing the permit. Furthermore, since Section 8.19(a) of the City/Parish Code of Ordinances states that the decision to revoke a permit is discretionary, we further hold that | Smandamus does not lie to order DPW to revoke the permit, even in light of the subsequent evidence of commercial activity taking place at the permitted site.

CONCLUSION

Therefore, based on the foregoing discussion, we find that the trial court correctly denied the petition for a writ of mandamus, and we, accordingly, affirm that judgment. All costs of this appeal in the amount of $967.48 are cast to the East Baton Rouge Parish Fire Protection District Six.

AFFIRMED.

      . Although only a copy of the occupancy notice appears in the record, at the show cause hearing, a building official from DPW testified that the actual permit was issued on or after the date the notice was issued.

      . City/Parish Code of Ordinances Section 8.5 provides, in its entirety:
      (a) Definitions.

        Fire official shall mean chief of the Baton Rouge city fire department or his designee. Except that in Central Fire Protection District, District 6 Fire Protection District, East Side Fire Protection District and St. George Fire Protection District, the term shall mean the chief of each respective district or his designee.

        Fire protection system(s) shall mean any form of water supply that extends onto private property or installed in a structure for a fire sprinkler system or a fire hydrant that is not in [a] dedicated right-of-way and is constructed or installed for the protection of that structure.
      (b) Water supply. An adequate water supply shall be provided for buildings to meet the necessary fire flow requirements as determined by fire official. Where public water supply is inadequate or not available, an approved alternative water source meeting the fire flow requirements shall be provided.
      (c) Location of fire hydrants. The location and number of hydrants shall be designated by the fire official, but in no case shall the distance between installed fire hydrants exceed one thousand (1000) feet. Maximum distance from the nearest hydrant [to] the most remote exterior point of any building shall be five hundred (500) feet. The distance shall be measured on a roadway surface meeting the fire department access requirements of section 602.6 of the 1994 edition of the Standard Fire Prevention Code and all amendments and/or modifications thereto.
      (d) Plans and specifications. Plans, specifications and hydraulic calculations for installation, modification, or alteration of any private fire sprinklers or private fire hydrant shall be submitted, by the owner or his designee, to the fire official of the desig-
      nated fire district, for review and approval prior to installation, modification or alteration. Fire line service mains and fire hydrants shall be maintained in proper working order and shall be accessible to the fire official of the designated fire district for emergency use, for inspection and for testing. The installation and maintenance of water mains and fire hydrants located in private property shall be at the owner's expense.
      (e) Preliminary approval. No building permit shall be issued without preliminary approval of the fire official. The building official may authorize the issuance of a building permit due to unusual delays with the approval of the fire official.
      (f) Fire flow tests shall be witnessed by the fire official prior to the issuance of the certificate of occupancy.
      (g) Before final approval and acceptance of fire suppression, alarm, detection or any fire protection device including standby power facilities and fire ventilating systems, in any building or structure, the installation shall be subject to an acceptance test. These tests shall be adequate to determine that the system or fire protection device has been properly installed and will function as intended. It shall be unlawful to occupy any portion of a structure until the required fire protection systems within that portion of the structure have been tested and approved by the fire official.
      (h) No person shall install, make alterations or additions to a fire protective signaling, detection or fire suppression system before securing a permit from the fire official.
      (i) The fire official may waive the provisions of this section and/or issue temporary or provisional approvals.
      (j) The provisions of this section do not apply to one- and two-family dwellings or their accessory structures.