author: FULMER, Judge.

text:
    Dwight DUBOSE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4291.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Donna S. Koch’ Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Dwight Dubose appeals from his convictions for first-degree murder and attempted robbery. We affirm the convictions but reverse and remand for resentencing.

Dubose was originally sentenced to life on the first-degree murder conviction followed by a consecutive sentence of five years on the attempted robbery conviction. Both sentences were imposed under section 775.082, Florida Statutes (2001), the prison releasee reoffender (PRR) statute. In response to a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), the trial court set aside the PRR designation on the life sentence. The consecutive five-year PRR sentence was not amended.

Dubose argues that the trial court erred in running the five-year PRR sentence consecutive to his life sentence. We agree. In Hall v. State, 821 So.2d 1154 (Fla. 2d DCA 2002), the defendant was ordered to serve a habitual violent felony offender sentence of thirty years consecutively to a nonhabitual life sentence. This court stated that Hall was entitled to serve his habitual sentence first “ ‘in order to preserve [Hall’s] entitlement, if any, to control release.’ ” Id. at 1155 (quoting Smith v. State, 632 So.2d 95, 97 (Fla. 2d DCA 1994)); see also Ricardo v. State, 608 So.2d 93 (Fla. 2d DCA 1992); § 947.146, Fla. Stat. (2001) (authorizing control release). The same reasoning applies to PRR sentencing. As with a defendant who is given a habitual offender sentence, a defendant who is sentenced pursuant to the PRR statute is severely restricted in his opportunity to earn gain time or otherwise serve less than the entire sentence. See § 775.082(9)(b). Thus, in order to preserve entitlement to any possible early release that may apply to the non-PRR sentence, Dubose must be allowed to serve his PRR sentence first.

Therefore, we reverse Dubose’s sentence and remand with directions that he be resentenced in accordance with this opinion. Dubose need not be present for the resentencing.

Reversed and remanded with directions.

BLUE, C.J., and STRINGER, JJ„ Concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Arthur SPIKES v. STATE of Louisiana.
    No. 2002-KH-0375.
    Supreme Court of Louisiana.
    Jan. 10, 2002.
   In re Spikes, Arthur; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 203,780; to the Court of Appeal, Third Circuit, No. KH 01-00946.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    Gloria SCOTT, et al. v. AMERICAN TOBACCO COMPANY, INC., et al.
    No. 2003-CC-0025.
    Supreme Court of Louisiana.
    Jan. 3, 2003.
   In re The American Tobacco Company; Philip Morris Incorporated; Lorillard Tobacco Company; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation individually and as successor to the American Tobacco Company; The Tobacco Institute, Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 96-8461; to the Court of Appeal, Fourth Circuit, No. 2002-C-2749.

Denied.

TRAYLOR, J., recused.

VICTORY, J., would grant the writ.


text:
    Michella HOLMES, et al. v. Josephine PACIERA, et al.
    No. 2003-CC-0031.
    Supreme Court of Louisiana.
    Jan. 6, 2003.
   In re Paciera, Josephine et al.; Paciera, Anthony; State Farm Ins. Co.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2001-1370; to the Court of Appeal, Fourth Circuit, No. 2002-C-2752.

Stay denied; writ denied.

VICTORY, J., would grant the writ.


text:
    Gloria SCOTT, et al. v. AMERICAN TOBACCO COMPANY, INC., et al.
    No. 2003-CC-0033.
    Supreme Court of Louisiana.
    Jan. 6, 2003.
   In re Jackson, Deania M.; The American Tobacco Company; Philip Morris Incorporated; Lorillard Tobacco Company; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation individually and as successor to the American Tobacco Company; The Tobacco Institute, Inc.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 96-8461; to the Court of Appeal, Fourth Circuit, No. 2003-C-0025.

Stay denied. Writ denied.

TRAYLOR, J., recused.


text:
    Robert Johnny GASPARD v. DRAGER, INC., et al.
    No. 2002-CC-3104.
    Supreme Court of Louisiana.
    Jan. 8, 2003.
   In re Hartford, The; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. C, No. 99-73320-C; to the Court of Appeal, Third Circuit, No(s). CW 02-01328, CW 02-01327.

Stay denied. Writ denied.


text:
    STATE ex rel. Paul A. REAVILL, II v. STATE of Louisiana.
    No. 2001-KH-3333.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Reavill, Paul A. II; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, No. 61,1185-M; to the Court of Appeal, Third Circuit, No. KH 01-00865.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    STATE of Louisiana v. Rodney A. TAYLOR.
    No. 2001-KO-3326.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Taylor, Rodney A.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 95-2328; to the Court of Appeal, Fifth Circuit, No. 01-KA-452.

Denied.


text:
    STATE of Louisiana v. James C. PIERCE.
    No. 2001-KO-3312.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Pierce, James C.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Evangeline, 13th Judicial District Court Div. A, No. 55,327; to the Court of Appeal, Third Circuit, No. 01-94.

Denied.


text:
    STATE ex rel. Leon Leonard MOSELY v. STATE of Louisiana.
    No. 2001-KH-3044.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Mosely, Leon Leonard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. D, No. 88811; to the Court of Appeal, First Circuit, No. 2000 KA 2945.

Denied.


text:
    In re Nathalie ROYOT, Veronique Marty, Celine Moguen, and Guillaume Jarry.
    No. 2002-OB-2623.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Royot, Nathalie; Marty, Vero-nique; Moguen, Celine; Jarry, Guill-aume; — Plaintiffs); Applying for Permission to Take Bar Examination.

Not considered. As to petitioners Na-thalie Royot, Veronique Marty, and Celine Moguen, there has been no showing that their qualifications for admission have changed since this Court denied their prior applications. In the absence of such a showing, this Court will not consider a new application from these petitioners. As to petitioner Guillaume Jarry, the application is premature, as there is no indication petitioner has applied for admission to the Committee on Bar Admissions. See Supreme Court Rule XVII.


text:
    ANGELO IAFRATE CONSTRUCTION, LLC v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, and Barriere Construction Company L.L.C.
    No. 2002-C-2142.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Angelo Iafrate Construction, LLC; — Plaintiff(s) Applying for Reconsideration of this Court’s Action dated November 8, 2002; Parish of East Baton Rouge, 19th Judicial District Court Div. “M” No. 474,075, to the Court of Appeal, First Circuit, No. 2001 CA 2761.

Not considered. See Supreme Court Rule IX, Section 6.


text:
    STATE of Louisiana v. Kelvin WELLS.
    No. 2002-CP-1853.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Wells, Kelvin; — Defendant; Applying for Reconsideration of this Court’s order dated October 14, 2002; Parish of E. Baton Rouge, East Baton Rouge Juvenile Court, No. 2-00-097-B; to the Court of Appeal, First Circuit, No. 2002 CW 0581.

Not considered. See Supreme Court Rule IX, Section 6.


text:
    Jerrod A. WILSON v. Dr. GUTIERREZ, Burl Cain and Richard Stalder.
    No. 2002-C-1772.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   Jerrod A. Wilson Applying for Reconsideration of this Court’s order dated October 4, 2002; Parish of E. Baton Rouge, 19th Judicial District Court, Div. J, No: 462,-109; to the Court of Appeal, Circuit, No. 2001 CA 0504.

Not considered. See Supreme Court Rule IX, Section 6.


text:
    SILLIMAN PRIVATE SCHOOL CORPORATION v. SHAREHOLDER GROUP.
    No. 2002-C-1501.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Shareholder Group; — Defendant; Applying for Reconsideration of this Courts order dated September 20, 2002; Parish of East Feliciana, 20th Judicial District Court Div. B, No. 32,171 to the Court of Appeal, First Circuit, No. 2001 CA 0964.

Not considered. See Supreme Court Rule IX, Section 6.


text:
    James BAKER, et ux. v. Jeffrey Allen WILLIAMS, P.A. and James Baker, Shirley Baker and on Behalf of Their Minor Children Bobby Joe Baker, Daniel James Baker, and Caitlin Goldie Baker v. Spine-Tech Surgical, Inc., Spine-Tech, Inc, & Sulzer Spine-Tech, Inc. and James Baker, Shirley Baker and on Behalf of Their Minor Children Bobby Joe Baker, Daniel James Baker, and Cattlin Goldie Baker v. Dr. Louis C. Blanda and Lafayette General Hospital.
    No. 2002-C-2447.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Baker, James — Plaintiff(s); Applying for Reconsideration of this Court’s action dated November 22, 2002; Parish of Lafayette, 15th Judicial District Court Div. “G”, Nos. 98-2377, 98-5580, 2000-373; to the Court of Appeal, Third Circuit No(s) 02-67, 02-68, 02-69.

Reconsideration denied. See Supreme Court Rule IX, Section 6.


text:
    FRATERNAL ORDER OF POLICE CRESCENT CITY LODGE NO. 2, William Roth, William Patin, Ronald Kennedy, Ira Austin, Sr., John Graham and Patricia Childress v. The CITY OF NEW ORLEANS, the City Civil Service Commission of New Orleans, and the New Orleans Police Department.
    No. 2002-C-1801.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Fraternal Order of Police, Crescent City Lodge No. 2, William Roth, William Patin, Ronald Kennedy, Ira Austin, Sr., John Graham and Patricia Childress, Plaintiffs; Applying for Rehearing of this Court’s action dated November 8, 2002, Parish of Orleans, Civil District Court Div. E, No. 80-7924; to the Court of Appeal, Fourth Circuit, No. 2001-CA-0052.

Rehearing denied.

KIMBALL, J. would grant the writ.


text:
    Tammy LANGLOIS, in Her Own Right and on Behalf of the Minor Child Krystal Martin v. EAST BATON ROUGE PARISH SCHOOL BOARD and Nita K. Braud.
    No. 2002-CA-1900.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Tammy Langlois, in her own right and on behalf of the minor child, Krystal Martin, applying for Rehearing of this Court’s Order dated September 20, 2002; Parish of E. Baton Rouge, 19th Judicial District Court, Division D., No. 442,379.

Rehearing denied.

WEIMER, J., recused.


text:
    STATE ex rel. Ernest SERIO v. STATE of Louisiana.
    No. 2002-KH-0365.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Serio, Ernest; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 99-0605; to the Court of Appeal, Fifth Circuit, No. 01-KH-1408.

Denied.


text:
    STATE ex rel. Andrew JOHNSON v. STATE of Louisiana.
    No. 2002-KH-0366.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Johnson, Andrew; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 389-441; to the Court of Appeal, Fourth Circuit, No. 2001-K-1777.

Denied.


text:
    STATE ex rel. Ernest M. SERIO v. STATE of Louisiana.
    No. 2002-KH-0367.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Serio, Ernest M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 00-6727; to the Court of Appeal, Fifth Circuit, No. 02-KH-24.

Denied.


text:
    STATE ex rel. Harold BROWN v. STATE of Louisiana.
    No. 2002-KH-0376.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Brown, Harold; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 397-341; to the Court of Appeal, Fourth Circuit, No. 2001-K-2154.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Alvin MALVEAUX, Jr. v. STATE of Louisiana.
    No. 2002-KH-0377.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Malveaux, Alvin Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. 0, No. 98-K-4690-B; to the Court of Appeal, Third Circuit, No. 01-0826.

Denied.


text:
    Kevin PETERSON v. Mickey HUBERT, Tommy Glover, Carol Poole, Todd Thomas, Pamela Horne, Michael Trent, Raymond Byrd, Virgil Lucas.
    No. 2002-CI-0384.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Peterson, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 470,977; to the Court of Appeal, First Circuit, No. 2000 CA 2097.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. John Anthony COATES.
    No. 2002-KP-0396.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Coates, John Anthony; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. G, No. 90-17887; to the Court of Appeal, Second Circuit, No. 35936-KW.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 351.


text:
    STATE ex rel. James P. AUGUSTINE v. STATE of Louisiana.
    No. 2002-KH-0415.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Augustine, James P.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 99-6297; to the Court of Appeal, Fifth Circuit, No. 01-KH-1206.

Denied.


text:
    STATE ex rel. Bobby JONES v. STATE of Louisiana.
    No. 2002-KH-0417.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Jones, Bobby; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 375-835; to the Court of Appeal, Fourth Circuit, No. 2001-K-2184.

Denied.


text:
    STATE ex rel. Deon JACKSON v. STATE of Louisiana.
    No. 2002-KH-0429.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Jackson, Deon; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 94-4811; to the Court of Appeal, Fifth Circuit, No. 01-KH-1417.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr. P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Clifford WRIGHT v. STATE of Louisiana.
    No. 2002-KH-0430.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Wright, Clifford; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 95-2042; to the Court of Appeal, Fifth Circuit, No. 02-KH-29.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. George PORTER v. STATE of Louisiana.
    No. 2002-KH-0433.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Porter, George; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 391-217; to the Court of Appeal, Fourth Circuit, No. 2000-KA-2286.

Denied.


text:
    STATE ex rel. John L. MOORE v. STATE of Louisiana.
    No. 2002-KH-0444.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Moore John L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 6-98-653; to the Court of Appeal, First Circuit, No. 01-KW-1938.

Denied.


text:
    STATE ex rel. Gregory WARNER v. STATE of Louisiana.
    No. 2002-KH-0452.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Warner, Gregory; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. C, No. 91-CR2-47615; to the Court of Appeal, First Circuit, No. 01-KW-2007.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Willie CARTER.
    No. 2002-KP-0469.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Carter, Willie; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 94-6488; to the Court of Appeal, Fifth Circuit, No. 01-KH-1352.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Alonzo FORD.
    No. 2002-KP-0470.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Ford, Alonzo; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 96-7172; to the Court of Appeal, Fifth Circuit, No. 01-KH-1330.

Denied.


text:
    STATE of Louisiana v. Randy DELAHOUSSAYE.
    No. 2002-KP-0495.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Delahoussaye, Randy; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. D, No. 97-CR-432; to the Court of Appeal, Third Circuit, No. KW 01-01313.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Levar DOUGHTY.
    No. 2002-KP-0496.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Doughty, Levar; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 98-3829; to the Court of Appeal, Fifth Circuit, No. 01-KH-1404.

Denied.


text:
    STATE of Louisiana v. Howard LAMPTON, Jr.
    No. 2002-KO-0502.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Lampton, Howard Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 410-778; to the Court of Appeal, Fourth Circuit, No. 2001-KA-0834.

Denied.


text:
    STATE of Louisiana v. Darrow L. BAKER.
    No. 2002-KO-0504.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Baker, Darrow L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 399-733; to the Court of Appeal, Fourth Circuit, No. 2000-KA-1763.

Denied.


text:
    STATE of Louisiana v. Frank SERGENT.
    No. 2002-KO-0508.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Sergent, Frank; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 410-885; to the Court of Appeal, Fourth Circuit, No. 2001-KA-0377.

Denied.


text:
    STATE of Louisiana v. John F. ROYAL.
    No. 2002-KO-0532.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Royal, John F.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 00-6099; to the Court of Appeal, Fifth Circuit, No. 01-KA-438.

Denied.


text:
    STATE of Louisiana v. Terry PERRYMAN.
    No. 2002-K-1416.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Perryman, Terry; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 269845; to the Court of Appeal, First Circuit, No. 2001 KA 0420.

Denied.

VICTORY, J., would grant the writ.


text:
    STATE of Louisiana v. Guy FRANK.
    No. 2002-K-1708.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Frank, Guy; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 417-061; to the Court of Appeal, Fourth Circuit, No. 2001-KA-1994.

Denied.


text:
    STATE of Louisiana v. Sherry JOHNSON, Jr. State of Louisiana v. Sherry R. Johnson, Jr.
    No. 2002-K-1850.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Johnson, Sherry R. Johnson; Johnson, Sherry; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. R, Nos. 99 — 4439, 2000-1866; to the Court of Appeal, Fourth Circuit, No(s). 2001-KA-1455, 2001-KA-1457.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Jeffrey Lynn JOHNSON.
    No. 2002-K-1920.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Johnson, Jeffrey Lynn; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. C, No. 100,722; to the Court of Appeal, Second Circuit, No. 36,046-KA.

Denied.


text:
    STATE of Louisiana v. Sherry R. JOHNSON, Jr.
    No. 2002-KO-1957.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Johnson, Sherry R. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, Nos. 99-4439, 2000-1866; to the Court of Appeal, Fourth Circuit, No(s). 2001-KA-1455, 2001-KA-1457.

Denied.

JOHNSON, J., would grant the writ.


text:
    Pamela S. MCKINSTRY v. Byron H. MCKINSTRY, Jr.
    No. 2002-C-2361.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re McKinstry, Pamela S.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jackson, 2nd Judicial District Court Div. A, No. 25,835; to the Court of Appeal, Second Circuit, No. 36,-285-CA.

Denied.

JOHNSON, J., would grant the writ.

KNOLL, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Jaimee SMITH, et al. v. Amilcar CORREA, M.D., et al.
    No. 2002-CC-2526.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Smith, Jaimee et al.; Smith, Jams; Smith, Jennifer; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 99-11257; to the Court of Appeal, Fourth Circuit, No. 2001-C-2126.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    BOARD OF ASSESSORS OF the CITY OF NEW ORLEANS v. CITY OF NEW ORLEANS.
    No. 2002-C-2633.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re New Orleans City of Bd. of Assessors; — Plaintiff; Applying for Writ of Cer-tiorari and/or Review, Parish of Orleans, Civil District Court Div. K, No. 99-17471; to the Court of Appeal, Fourth Circuit, No. 2002-CA-0691.

Denied.


text:
    QUALITY ENVIRONMENTAL PROCESSES, INC., Michael X. St. Martin and Virginia Rayne St. Martin v. ENERGY DEVELOPMENT CORPORATION, Phillips Petroleum Company, Mobil Exploration & Producing U.S., Inc., and I.P. Petroleum Company, Inc.
    No. 2002-C-2697.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Quality Environmental Processes Inc. et al.; St. Martin, Michael X.; St. Martin, Virginia Rayne; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 129,412; to the Court of Appeal, First Circuit, No. 2001 CA 2255.

Denied.

TRAYLOR, J., recused.


text:
    Linda K. MINTON v. LONG’S PREFERRED PRODUCTS, INC., et al.
    No. 2002-C-2716.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Long’s Preferred Products, Inc.; Long, Julian E.; Long, Julian W.; Percy, Tracy; Long, Eva; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. E, Nos. 196,819, 196,820; to the Court of Appeal, Third Circuit, No(s). 02-0260, 02-0261.

Denied.


text:
    Dallas FLEMING v. ACADIAN GEOPHYSICAL SERVICES, INC., et al.
    No. 2002-C-2717.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Acadian Geophysical Services Inc.; — -Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. F, No. 061002; to the Court of Appeal, Third Circuit, No. 02-264.

Denied.


text:
    Phillip ABATE, Jr. v. CITY OF ABBEVILLE.
    No. 2002-C-2718.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Abate, Phillip, Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office Of Workers’ Compensation Dist. #4, No. 00-09956; to the Court of Appeal, Third Circuit, No. WCA 02-297.

Denied.


text:
    CALCASIEU PARISH SCHOOL BOARD v. Willie PARKER d/b/a Transmissions Plus.
    No. 2002-C-2719.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Parker, Willie d/b/a; Transmission Plus; Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Calca-sieu, 14th Judicial District Court Div. F, No. 99-2237; to the Court of Appeal, Third Circuit, No. 02-339.

Denied.


text:
    LYCON, INC. v. WEATHERFORD ARTIFICIAL LIFT SYSTEMS, et al.
    No. 2002-C-2722.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Weatherford Artificial Lift Systems, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. I, No. 20002614; to the Court of Appeal, Third Circuit, No. 02-318.

Denied.


text:
    Thomas Dude SAVOY and Rita Savoy v. TERREBONNE MEN’S CARNIVAL CLUB, INC., d/b/a the Krewe of Hercules, Tig Insurance Company, Terrebonne Parish Consolidated Government, Jerry Larpenter, Terrebonne Parish Sheriffs Department and Allstate Insurance Company.
    No. 2002-C-2723.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Savoy, Thomas Dude et al.; Savoy, Rita; — Plaintiff/s); Applying for Writ of Certiorari and/or Review, Parish of Terre-bonne, 32nd Judicial District Court Div. C, No. 128,047; to the Court of Appeal, First Circuit, No. 2001 CA 1441.

Denied.


text:
    Tony CHANEY v. AMERICAN CITADEL GUARD, INC.
    No. 2002-C-2726.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Chaney, Tony; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, East Baton Rouge City Court, No. 0008-07485A; to the Court of Appeal, First Circuit, No. 2001 CA 2206,

Denied.


text:
    STATE of Louisiana v. Corey MILLER.
    No. 2002-KK-2727.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Miller, Corey; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, Nos. 02-404, 02-3952; to the Court of Appeal, Fifth Circuit, No. 02-K-979.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Corey MILLER.
    No. 2002-KK-2744.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, Nos. 02-404, 02-3952; to the Court of Appeal, Fifth Circuit, No. 02-K-927.

Denied.

CALOGERO, C.J., recused.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    STATE of Louisiana v. Sean WHITTINGTON.
    No. 2002-KH-2928.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Whittington, Sean; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 8-02-369; to the Court of Appeal, First Circuit, No. 2002/KW/1647.

Denied.


text:
    CITY OF HAMMOND v. SIZELER HAMMOND SQUARE LIMITED PARTNERSHIP.
    No. 2002-OC-2935.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Hammond City of; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 9902187; to the Court of Appeal, First Circuit, No. 2002 CM 2214.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Thomas HATCHER.
    No. 2002-KK-2958.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 428-823; to the Court of Appeal, Fourth Circuit, No. 2002-K-1156.

Denied.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Lawton OWENS.
    No. 2002-KH-3042.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Owens, Lawton; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 7-01-196.

Denied. Moot. The district court has acted.


text:
    STATE of Louisiana v. Demond BARTLEY.
    No. 2002-KH-3245.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   In re Bartley, Demond; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 421-738; to the Court of Appeal, Fourth Circuit, No. 2002-K-2330.

Denied.


author: J^PETTIGREW, J.

text:
    Roxanne WESTERMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2001 CA 2159.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.
    Steve Joffrion, Prairieville, for Plaintiff-Appellant Roxanne Westerman.
    Matthew W. Pryor, Gonzales, for Defendant-Appellee State Farm Mutual Automobile Insurance Company.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^PETTIGREW, J.

In this case, plaintiff appeals the trial court’s judgment whereby the court granted defendant’s exception raising the objection of preclusion by judgment and dismissed plaintiffs claim with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 19, 1997, plaintiff, Roxanne Westerman, was operating her vehicle in a southerly direction on U.S. Highway 61 in Ascension Parish when she was rear-ended by a vehicle owned by Samuel Ridgeway and operated by defendant, Shelia McAllister. Ms. Westerman initially filed suit in Parish Court against Ms. McAllister and Mr. Ridgeway’s insurer, American Deposit Insurance Company. The case proceeded to trial, at which time the court ruled in favor of Ms. Westerman and assessed damages at $20,000.00. Thereafter, the parties reached a compromise whereby American Deposit paid its policy limits, $10,000.00, to Ms. Wester-man, and Ms. Westerman dismissed her claim with prejudice.

Thereafter, on September 21, 1999, Ms. Westerman filed the instant suit in Parish Court against her UM insurer, State Farm Mutual Automobile Insurance Company, seeking damages, penalties, and attorney fees in connection with this incident. The suit was later transferred to the Twenty-Third Judicial District Court, where the court entertained several exceptions filed by State Farm. Following a hearing on State Farm’s exceptions, the trial court granted the exception raising the objection of preclusion by judgment and dismissed Ms. Westerman’s case with prejudice. The court pretermitted ruling on the remaining exceptions raising the objections of res judicata, estoppel, and failure to join an indispensable party. Judgment in accordance with the court’s findings was rendered on January 26, 2001.

It is from this judgment that Ms. Wes-terman has appealed, presenting the following issue for our review:

Did the trial Judge commit manifest error in holding that a Judgment assessing damages in excess of the underlying liability coverage policy limit in a previous action, involving different litigants, different issues and different causes of action, founded on different theories of recovery |3precluded plaintiff/appellant from recovering from her U/M insurer in a subsequent action.

PRECLUSION BY JUDGMENT

Ms. Westerman argues in brief that her second suit against State Farm should not be barred on the basis of preclusion by judgment because the trial court determined that her damages exceeded the underlying amount of liability coverage afforded by the American Deposit policy. She asserts further that her suits are based on two causes of action that arise out of different transactions or occurrences. Ms. Westerman maintains that her first suit against Ms. McAllister and American Deposit arises out of an automobile accident, whereas her second suit against State Farm arises out of a contract of insurance that provides contractual uninsured motorist coverage to her when damages in excess of the underlying coverage are established. Noting that State Farm was not prejudiced in any way by the first litigation, Ms. Westerman contends that State Farm can, if it so chooses, contest the extent of her damages in the instant litigation.

State Farm argues in response that the transaction or occurrence giving rise to each cause of action is the automobile accident, and thus, Ms. Westerman’s UM claim against State Farm is barred because it was not asserted in the original suit. State Farm further notes that the two cases relied on by Ms. Westerman do not represent an accurate statement of current Louisiana law. State Farm maintains that “[t]he interests of justice, the traditional notions of fair play, and judicial economy do not permit the same issues being re-litigated over and over so as to accommodate a plaintiff in multiple causes of action against different defendants.”

With regard to preclusion by judgment, La.Code Civ. P. art. 425(A) provides as follows:

A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation. [Emphasis added.]

Prior to its amendment by 1990' La. Acts, No. 521, § 2, Article 425 read:

An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion. [Emphasis added.]

Ijnitially, we note that Ms. Westerman’s argument would prevail if we were to apply Article 425 as it existed prior to the 1990 amendment. While the cases cited by Ms. Westerman, i.e., Doyle v. State Farm (Mutual) Insurance Company, 414 So.2d 763 (La.1982) and Sutterfield v. Fireman’s Fund American Insurance Company, 344 So.2d 1159 (La.App. 4 Cir. 1977), appear to provide support for Ms. Westerman’s position that her second suit against State Farm is not precluded by the judgment in her first suit, State Farm correctly points out that both cases predate the 1990 amendment to Article 425 requiring all causes of action arising out of a transaction or occurrence to be brought in the same litigation. •

In Doyle, the Louisiana Supreme Court held that the plaintiff was not precluded from re-litigating the extent of his damages in a state court action against State Farm Mutual Insurance Company, his uninsured motorist carrier, following a federal court suit by the plaintiff against the automobile manufacturer in which the defendant and State Farm, in its capacity as the defendant’s liability insurer, were released by settlement. Reversing the lower court’s judgment granting State Farm’s motion for summary judgment in the state court action, the supreme court noted as follows:

In the instant case, we do not have a splitting of the cause of action. Plaintiffs action against [the defendant], State Farm, as her liability insurer, and [the automobile manufacturer] was based on breach of duties or obligations required of persons in their relationships with one another. La.Civ.Code art. 2315 et seq. Plaintiffs cause of action against State Farm, in its capacity as his uninsured motorist carrier, is based on an obligation created by a contract of insurance entered into between the parties.

Doyle, 414 So.2d at 765-766.

The Sutterfield case involved one suit for coverage under the property damage provisions of an insurance policy and a second suit filed one week later for coverage under the uninsured motorist obligation of the same policy. The fourth circuit court of appeal held that the insurer undertook several obligations by entering into the insurance contract. The court noted that the accident not only gave rise to a tort obligation due by the uninsured motorist tortfeasor to repair damages, but also gave rise to two contractual obligations due him by his own insurer. Sutterfield, 344 So.2d at 1162. The - court concluded that an obligation is not “divided” within the "meaning of Article 425 when | ^separate suits are brought seeking property damages and damages for personal injuries arising out of the same incident. Id.

In another pre-amendment case, Cantrelle Fence and Supply Company, Inc. v. Allstate Insurance Company, 515 So.2d 1074 (La.1987), the court noted that an obligation arising out of La. R.S. 22:658, a penalty statute, was separate and distinct from the obligation arising out of the contractual relationship under an insurance policy. The court concluded that Article 425 was not applicable because the two suits brought by the plaintiff were based on separate obligations and did not involve a division of obligation. Cantrelle, 515 So.2d at 1079.

Based, on a review of the jurisprudence interpreting Article 425 as it existed prior to the 1990 amendment, it is clear that the focus was on preventing an insured from dividing an obligation due him for the purpose of bringing separate actions. However, as stated in the 1990 Comment to Article 425, the amendment of Article 425 by 1990 La. Acts, No. 521, § 2 “expands the scope of this Article to reflect the changes made in the defense of res judicata and puts the parties on notice that all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation must be raised.” Thus, under the current version of Article 425, although a plaintiffs claims may constitute separate causes of action, if they arise out of the same transaction or occurrence, they must be asserted in the same action.

Although there are very few cases that address the current version of Article 425, there are cases that refer to Article 425 in conjunction with a claim of res judicata under La. R.S. 18:4231. In Wood v. May, 95-0589 (La.App. 4 Cir. 6/7/95), 658 So.2d 8, rev’d on other grounds, 95-2224 (La.11/27/95), 663 So.2d 739, the fourth circuit recognized that prior to being amended by 1990 La. Acts, No. 521, Article 425 and La. R.S. 13:4231 allowed a plaintiff to file a second action for penalties and attorney fees after a judgment awarding damages. The court noted, however, that under the amended provisions of Article 425 and La. R.S. 13:4231, although the plaintiffs claims for penalties and attorney fees constitute separate causes of action, the plaintiff must assert all claims that arise out of the same transaction or occurrence in one action. Wood, 95-0589 at 2, 658 So.2d at 9. See also Millet v. Crump, 97-562 (La.App. 5 Cir. 11/25/97), 704 So.2d 305, writ denied, 97-3207 (La.2/20/98), 709 So.2d 782; Fine v. Regional Transit Authority, 95-2603 (La.App. 4 Cir. 6/26/96), 676 So.2d 1134. Moreover, the failure to raise a claim that arises from the transaction or occurrence that is the subject matter of the litigation amounts to a waiver of that claim. Medicus v. Scott, 32-326, p. 6 (La.App. 2 Cir. 9/22/99), 744 So.2d 192, 196.

In the instant case, Ms. Westerman’s claim in tort against Ms. McAllister and American Deposit and her UM claim against State Farm clearly arose from the same occurrence, to wit, the automobile accident of November 19, 1997. See Chabaud v. Sylvester, 98-330, p. 8 (La.App. 5 Cir. 10/14/98), 722 So.2d 1014, 1019, rev’d on other grounds, 98-2852 (La.2/5/99), 728 So.2d 851. Thus, although the two may be separate causes of action, one based in tort and the other based in contract, Ms. Wes-terman was required to assert both claims in one action. Failure to do so on her part amounted to a waiver of her UM claim.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court granting State Farm’s exception raising the objection of preclusion by judgment and dismissing Ms. Westerman’s claim with prejudice is affirmed. All costs associated with this appeal are assessed against plaintiff-appellant, Roxanne Westerman.

AFFIRMED.


author: | ¡JAMES, Judge Pro Tempore. PARRO, J.,

text:
    Jonathan DUNNING v. DAPCO VENTURES, L.L.C.
    No. 2001 CA 2366.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Denied Dec. 19, 2002.

      Wayne H. Carlton, Jr., New Orleans, for Plaintiff-Appellee Jonathan Dunning.
    Stephen W. Brooks, Jr., William G. Tabb, III, Covington, for Defendant-Appellant Dapco Ventures, L.L.C.
    Before: PARRO, JAMES  and PATTERSON, JJ.

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

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

   | ¡JAMES, Judge Pro Tempore.

Defendant, Dapco Ventures, L.L.C. (Dapco), appeals a judgment signed by a workers’ compensation judge (WCJ) on June 21, 2001, awarding claimant, Jonathan Dunning, medical benefits and weekly-compensation benefits based on an average weekly wage of $500.00 and dismissing defendant’s claims pursuant to La. R.S. 23:1208 and defendant’s third party petition. For the following reasons, we now affirm.

FACTUAL AND PROCEDURAL HISTORY

This workers’ compensation claim arises out of injuries allegedly sustained by Jonathan Dunning while he was working as an independent contractor for Dapco. Dunning had been hired to perform certain painting work at the Fountainbleu State Park in Mandeville, Louisiana. Dunning had previously worked as an employee for Dapco and other related companies, but for this particular job he was hired as an independent contractor. He used the name Gulf South Painting in contracting for the job with Dapco, although no formal business entity was ever formed and Gulf South Painting never had any bank ■ accounts. The contract Dunning had with Dapco required that he procure a workers’ compensation insurance policy to cover the employees he hired to help him complete the work.

On the second day on the job, which was either July 11 or 12 of 2000, Dunning claims that he was injured when he fell about five feet from a scaffold and landed on his left shoulder and neck. One of Dunning’s employees, Tony Abbey, testified in his deposition that he was present at the time' and witnessed the accident. Although Dunning advised one of the owners of Dapco, David Luparello, of the accident, he did not make an [ 3accident report, and he did not seek immediate medical treatment. He testified that he wanted to complete the job, as it was his first job as an independent contractor for Dapco, and he thought the pain in his neck and shoulder was not serious and would go away with time. Therefore, he continued to work, although he claims he was unable to perform most of the painting work that he had been able to perform prior to the accident. As a result, he testified he had to hire additional workers to help with the labor. .

As the job progressed, Dunning claims he continued to have problems with his neck and shoulder. According to Tony Abbey and the two other painters hired by Dunning, Wayne Darmas and Sidney Dar-mas, Dunning complained about his neck and shoulder and was unable to perform much hard labor during the course of the job, and they mainly saw him performing less strenuous tasks that did not require heavy lifting or reaching overhead. However, Eric Folse, one of the owners of Dapco who visited the job site for about one or two hours each day, testified that Dunning continued to work hard even after his alleged injury and that he witnessed Dunning performing strenuous tasks,.such.as unloading the truck, carrying heavy objects, .and painting.

On August 25, 2000, after a verbal disagreement allegedly took place between Dunning, his girlfriend, and some of the park rangers at Fountainbleu, Dunning was advised that his services were no longer needed. Thereafter, on August 27, 2000, about, six weeks after his alleged accident, Dunning sought medical treatment at the Northshore Regional Medical Center emergency room, where he was given pain medication and advised to seek orthopedic treatment. He then went to Lallie Kemp Hospital on September 15, 2000, and the doctors there recommended an MRI.

|4On October 31, 2000, Dunning was examined by an orthopedic surgeon, Dr. Robert Ruel, who was of .the opinion that Dunning had a cervical disc herniation and tendonitis about the left shoulder. Dr. Ruel also found evidence of radicular pain and diminished to absent left biceps reflex. He recommended an immediate EMG and nerve conduction study of the left arm, an immediate MRI of the cervical spine, and an MRI of the left shoulder.

At the request of Dapco, Dunning was examined by Dr. Gordon Nutik on December 27, 2000. Dr. Nutik performed x-rays and concluded that Dunning may have sustained soft tissue injuries, such as muscle strains to the neck and left shoulder. He also thought there was the possibility of a cervical disc herniation, and he recommended EMG studies of the upper extremities, an MRI of the cervical spine, and an MRI of the left shoulder.

The MRI was performed on February 1, 2001, and the EMG was performed on March 6, 2001. These tests revealed a cervical disc herniation and a rotator cuff tear in the shoulder. Dr. Ruel then recommended physical therapy, followed by surgery if necessary, and Dr. Nutik initially concurred in the recommendation of surgery. However, after reviewing additional evidence, specifically medical records showing that Dunning had been involved in an accident in 1991 which he had failed to mention, and also a videotape of Dunning taken by a private investigator, Dr. Nutik changed his opinion and determined that surgery was not necessary. He also stated that he had “difficulty in relating causation of the findings on the diagnostic test of the neck as well as the left shoulder specifically to the work related injury that the patient states occurred on July 11, 2000.”

After a trial on the merits was held on April 26, 2001, the WCJ found that a work related accident had in fact occurred and that Dunning had been |Kmjured in the accident and was temporarily totally disabled and entitled to medical benefits and weekly compensation benefits in the amount of $333.33, based upon an average weekly wage of $500.00. The WCJ ordered Dapco to pay the past due weekly benefits which had accrued from July 12, 2000, to April 26, 2001, with a credit for all periods of time Dunning had worked for other employers subsequent to July 12, 2000. The WCJ also awarded future weekly compensation benefits, as he found Dunning to be temporarily totally disabled. He further awarded past due medical expenses and ordered Dapco to authorize all necessary future medical treatment. Dap-co’s third party petition and its claims under La. R.S. 23:1208 were dismissed. Dapco now appeals.

LAW AND ANALYSIS

Dapco argues that the WCJ erred in concluding that Dunning had been involved in a work related accident, that his neck and shoulder injuries were caused by the accident, and that he was temporarily totally disabled as a result of the accident. Dapco also contends that the WCJ erred in dismissing its claims, pursuant to La. R.S. 23:1208, because Dunning had made misrepresentations and forfeited his right to workers’ compensation benefits. To support these contentions, Dapco points out that Dunning did not seek medical attention at the time of the alleged accident and did not request or prepare a written accident report. Furthermore, Dapco notes the existence of conflicting testimony concerning the amount of manual labor Dunning was able to perform after the accident and concerning the exact time that Dunning hired the additional employees to help him complete the job.

With respect to the issue of causation, Dapco contends that, although Dunning repeatedly denied having had any previous injuries to his neck and |fishoulder, he had in fact been injured in November of 1991 when he was hit in the head with a limb while cutting down a tree. This injury caused Dunning to lose consciousness for about five minutes, but he did not immediately seek medical attention. He sought treatment the next day because his head had become swollen. He was diagnosed with having contusions of the left parietal and right temporal areas. Dapco argues that this was a significant prior injury for which Dunning sought treatment until the end of 1993 and which could be the cause of his current neck and shoulder problems. Dapco points out that around December of 1992, Dunning reported experiencing par-esthesias of the left arm a couple times per month since the accident and mild neck pain. Dapco is correct in that Dunning did seek treatment off and on until the end of 1993, and one of the medical reports did mention left arm paresthesias and mild neck pain. However, he was not treated for those conditions at that time because his primary complaint was headaches. He was being seen by a neurologist specifically for his headaches, and his headaches were the only thing for which he received treatment in connection with the 1991 injury.

Dapco has also focused much of its attention on alleged misrepresentations made by Dunning. Dapco argues that these misrepresentations provide proof that the WCJ erred in finding Dunning did not forfeit his right to workers’ compensation benefits by making false statements. Dapco urges that the misrepresentations are proof that the WCJ erred in finding a causal link between Dunning’s alleged accident and his neck and shoulder injuries and in finding Dunning to be disabled as a result of his alleged accident. For example, Dunning neglected to inform his treating physicians of his prior injury in 1991 when they inquired about his medical history. Dunning testified, however, that he considered the 1991 |7injury to be a head injury, not a neck or shoulder injury, and therefore, he thought it was irrelevant when he was questioned about his history of injuries to his neck and shoulder. Although there may have been some minor neck and shoulder pain associated with the 1991 injury,. Dunning’s primary concern was the injury to his head, and that is the only injury which required treatment at the time.

Dunning also went back to work in February of 2001 while the instant workers’ compensation claim was pending, but he did not inform his doctors of this fact for several months. Dapco argues that this is proof of fraud and misrepresentation on the part of Dunning-and that it is proof he was not in fact temporarily totally disabled. Dunning insists he had no choice but to go back to work because he was not receiving workers’ compensation benefits, and he had no means of paying his bills or supporting himself and his daughter. He testified that he feared the bank would foreclose on his home, and therefore, he went to work painting for Advanced Bridge Systems, where his disability is accommodated. He testified that he does very little overhead work, he uses a lift so that almost everything he paints is eye level, and he is allowed to lie down and rest whenever the pain in his neck and shoulder gets to be too bad. He testified that he has good days and bad days, and his job at Advanced Bridge Systems gives him enough flexibility that he can work there even though he is still experiencing pain.

Dapco has placed emphasis on a videotape of Dunning taken by a private investigator between March 22 and March 30 of 2001, which shows him functioning and performing everyday activities, such as driving and pumping gas, in a normal manner. The tape shows that Dunning is able to use his left arm and that he can turn his head to the left to a greater degree than described by his doctors. However, the tape is not conclusive evidence [Sbecause it does not demonstrate the degree of pain or difficulty that Dunning may be experiencing while performing these tasks.

The arguments set forth thus far by Dapco concern findings of fact and determinations of credibility of witnesses made by the WCJ. This court may not set aside the WCJ’s findings of fact in the absence of manifest error or unless clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). When there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844. The WCJ was in the position to hear the testimony, observe the witnesses, and perceive any variations in demeanor and tone of voice, and as long as his conclusions are reasonable in light of the record as a whole, this court may not reverse even if we would have weighed the evidence differently had we been sitting as trier of fact. Rosell, 549 So.2d at 844.

In the instant case, the WCJ obviously determined that the testimony of certain witnesses was more credible than others. Therefore, we must give his decision great deference because when a judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Rosell, 549 So.2d at 845. However, an appellate court may find manifest error when documents or objective evidence so contradict a witness’ story, or the story itself is so inconsistent or implausible, that a reasonable person would not credit the story. Rosell, 549 So.2d at 844-845. In the instant case, the objective medical evidence does not contradict Dunning’s story, but it in fact supports it because the EMG and MRI tests show a cervical disc herniation and a rotator cuff tear in the shoulder. Furthermore, although Dunning may not |9have always been forthcoming with certain information, his story is not so inconsistent or implausible that a reasonable factfinder would not credit it. Additionally, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Rosell, 549 So.2d at 844. Accordingly, we conclude that the WCJ was reasonable in finding that Dunning was involved in a work related accident, that his neck and shoulder injuries were caused by the accident, that he was temporarily totally disabled as a result of the accident, and that he did not forfeit his right to workers’ compensation benefits by making misrepresentations.

Dapco has argued that the WCJ erred in allowing the deposition testimony of Tony Abbey, Dunning’s employee and friend, to be introduced into the record as evidence. Abbey was working with Dunning at the time of his accident, and he testified in his deposition that he witnessed Dunning fall from the scaffold and land on the floor. Dunning’s trial counsel has stated that he attempted to have Abbey subpoenaed to testify at the trial, although there is nothing in the record to prove it, and Abbey claims never to have received a subpoena. Nevertheless, the WCJ held the record open after trial so that Abbey’s deposition could be taken. Dapco argues that the deposition should not have been admitted because Abbey was not unavailable as a witness to testify at trial. Louisiana Code of Civil Procedure art. 1450(A) provides, in pertinent part:

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or |in(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

Under this article, the trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will.not be disturbed on review in the absence of an abuse of that discretion. Dickens v. Commercial Union Ins. Co., 99-0698, 99-0699 (La.App. 1st Cir.6/23/00), 762 So.2d 1193, 1197. Under La. C. Civ. Proc. art. 1631, the court has the power to require that the proceedings shall be conducted so that justice is done. The objective of our judicial system is to render justice between litigants based on the merits of the controversy. Bankston v. Bankston, 97-2509 (La.App. 1st Cir.11/6/98), 722 So.2d 46, 47. Litigants should be permitted all reasonable opportunity to place before the trial court all facts bearing on the issues involved. Bankston, 722 So.2d at 47. Accordingly, the trial court has much discretion in deciding whether to reopen a case to allow additional evidence, and its decision should be reversed only if it is a clear abuse of that discretion. Bankston, 722 So.2d at 47. Therefore, we conclude that the WCJ did not abuse his discretion in allowing the deposition testimony of Tony Abbey to be introduced into the record as evidence.

Dapco asserts that the WCJ erred in basing Dunning’s weekly compensation benefits on an average weekly wage of $500.00 because that is not the amount of money Dunning .actually earned on the Dapco job. The total amount of work contracted was $11,634.00; however, out of this total, Dunning had to pay certain supply costs and the wages of his employees, and therefore, he only received about $1,000.00 for the entire seven week job. This provides an average weekly wage of $143.00.

!^ ■ However, Dunning was not an employee of Dapco, and therefore, the provisions of La. R.S. 23:1021(10) defining “wages” are not applicable to his employment situation. He was working as an independent contractor, and according to the jurisprudence, if an independent contractor is engaged in manual labor of the same kind as that done by his employees, then his profits and overhead cannot be included as á part of'his wages in calculating his weekly compensation benefits. Hamilton v. American Ins. Co., 439 So.2d 547, 550 (La.App. 1st Cir.1983); see La. R.S. 23:1021(6). Instead, in order to calculate his benefits, the court determines the prevailing wage basis for work similar in character and uses that figure as the basis for determining the weekly compensation benefits owed. Hamilton, 439 So.2d at 550. Therefore, based on the testimony concerning the hourly wages of experienced painters, the WCJ did .not err in concluding that Dunning had an average weekly wage of $500.00.

Lastly, Dapco contends that the WCJ erred in dismissing the third party petition filed on -behalf of Dapco against Gulf South Painting, seeking indemnification for any workers’ compensation benefits it may be required to pay to Dunning based on its assertion that Dunning was an employee of Gulf South Painting, which was the subcontractor performing work for Dapco, the general contractor. However, the WCJ concluded, and we agree, that Dunning utilized the name Gulf South Painting as his alter ego only, and no separate business entity by that name actually existed. Accordingly, Dapco is not entitled to any indemnification, and the WCJ did not err in dismissing its third party petition.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the WCJ awarding claimant, Jonathan Dunning, medical benefits and weekly [^compensation benefits based on an average weekly wage of $500.00 and dismissing defendant’s claims pursuant to La. R.S. 23:1208 and defendant’s third party petition. All costs of this appeal are assessed to defendant-appellant, Dapco Ventures, L.L.C.

AFFIRMED.

PARRO, J.,

dissents because I believe the claimant failed to prove temporary total disability by clear and convincing evidence as required by LSA-R.S. 23:1221(1).

      .La. R.S. 23:1310.5(F) requires that the published court of appeal opinion identify the office of workers’ compensation district from which the appeal was taken and the name of the WCJ who rendered the judgment. The WCJ was Honorable Robert W. Varnado, Jr. of the Office of Workers' Compensation Administration, District 6.


author: 1 p.KUHN, J.

text:
    PCS NITROGEN FERTILIZER, L.P. (F/K/A Arcadian Fertilizer, L.P.) v. U.S. FILTER/ARROWHEAD, INC., Successor-in-Interest to Arrowhead Industrial Water, Inc. & Commerce and Industry Insurance Company.
    No. 2001 CA 2577.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Denied Dec. 19, 2002.
    Joell M. Keller, William J. Hamlin, New Orleans, Counsel for Plaintiff/Appellant PCA Nitrogen Fertilizer, L.P.
    Nathan L. Schrantz, Robert I. Siegel, New Orleans, Counsel for Defendant/Ap-pellee Commerce and Industry Ins. Co.

      Before: KUHN, DOWNING, and GAIDRY, JJ.
   1 p.KUHN, J.

Plaintiff-appellant, PCS Nitrogen Fertilizer, L.P. formerly known as Arcadian Fertilizer, L.P. (PCS), appeals the trial court’s grant of summary judgment concluding the commercial general liability (CGL) policy issued by defendant-appellee, Commerce and Industry Insurance Company (Commerce), to insured, U.S. Filter/Arrowhead, Inc. successor-in-interest to Arrowhead Industries Water, Inc. (Arrowhead), does not provide coverage for PCS’s claims. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

PCS filed this lawsuit naming as defendants, Arrowhead and its CGL insurer, Commerce. According to the allegations of the petition, a purified water supply was critical to PCS’s operations. In March 1994, PCS entered into a Water Services Agreement, which required Arrowhead to design, install, and service a water purification system in accordance with stipulated specifications. PCS avers that in July 1998, Arrowhead failed to provide a water supply in conformity with the contractual specifications, thereby breaching the Water Services Agreement and forcing PCS to shut down operations. The petition further claims that after Arrowhead was apprised of the adverse situation, the problem was corrected. The petition maintains that as a result of the shutdown in operations, PCS incurred maintenance and start-up costs, as well as the time and value of lost production.

Commerce answered PCS’s lawsuit, asserting that the policy issued to Arrowhead does not provide coverage for the asserted claims. Commerce then filed a motion for summary judgment seeking dismissal from this lawsuit. After a hearing, the trial court granted the motion for summary judgment. And after expressly determining that l3the grant of summary judgment in favor of Commerce disposed of all issues between PCS and Commerce, the trial court designated the grant of summary judgment as final. This timely appeal by PCS followed.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Calhoun v. Hoffman-La Roche, Inc., 98-2770, p. 4 (La.App. 1st Cir.2/18/00), 768 So.2d 57, 60, writ denied, 2000-1223 (La.6/23/00), 765 So.2d 1041. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966A(2). After adequate discovery, or after a case is set for trial, a motion that shows there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law, shall be granted. La. C.C.P. art. 966C(1). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense; but, rather, to point out to the court that, there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966C(2).

|4Appellate courts review summary judgments de novo under the same criteria that govern the trial judge’s consideration of whether a summary judgment is appropriate. Robertson v. Northshore Regional Medical Center, 97-2068, p. 5 (La.App. 1st Cir.9/25/98), 723 So.2d 460, 463. Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment. Sanchez v. Callegan, 99-0137 (La.App. 1st Cir.2/18/00), 753 So.2d 403, 405.

DISCUSSION

The CGL policy issued to Arrowhead provides as follows:

We will pay those sums that the insured becomes legally obligated to pay as damages because of ... property damage to which this insurance applies.

This insurance applies to ... property damage only if:

(1) The ... property damage is caused by an occurrence ....

The policy defines “property damage” as:

a. Physical injury to tangible property including resulting loss of use of that property....
b. Loss of use of tangible property that is not physically injured. All such loss shall be deemed to occur at the time of the occurrence that caused it.

In this CGL policy “occurrence” means “an accident including continuous or repeated exposure to substantially the same general harmful conditions.”

Insofar as the relevant exclusionary provisions, the Commerce’s CGL policy issued to Arrowhead states:

This insurance does not apply to:
m. Damage to Impaired Property or Property Not Physically Injured
Property damage to impaired property or property that has not been physically injured arising out of:
A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms.
This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to your product or your work after it has been put to its intended use.

Commerce asserts that the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that the property has not been physically injured arising out of Arrowhead’s failure to perform in accordance with the terms of the Water Services Agreement. Thus, Commerce maintains, under exclusion m of the policy, it is entitled to judgment as a matter of law. We agree.

Under this exclusion, if an insured agrees to furnish equipment essential to the plaintiffs manufacturing process, there is no coverage for the plaintiffs loss of use arising out to the insured’s failure to perform the contract timely. Likewise, there is no coverage if the insured furnished the equipment timely, but the plaintiff suffered damages for loss of use because the equipment failed to operate. See William Shelby McKenzie and H. Alston Johnson III, Louisiana Civil Law Treatise: Insurance Law and Practice 410 (1996). This exclusion excludes from the policy’s coverage damage to property that has not been physically injured or for which the claimed damages are only for loss of use of that property. See Gaylord v. ProPump, Inc., 98-2367, p. 8 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 355.

On the showing made, the undisputed facts show that only damages associated with PCS’s loss of use are claimed. And, importantly, PCS’s petition urges only that Arrowhead failed to fulfill its contractual obligation, to furnish a water supply in conformity with, the contractual specifications set forth in the Water Services Agreement, specifically averring that it is the breach of contract by Arrowhead that gives rise to the claim for damages. Thus, assuming as true the allegations of its petition, the undisputed | ¿facts show that PCS suffered damages for loss of use because the water purification system failed to operate in accordance with the specifications set forth in the Water Services Agreement. With introduction of the insurance policy and the Water Services Agreement, Commerce has sustained its burden of showing no genuine issue of material fact and, therefore, its entitlement to summary judgment. ,

PCS asserts that exclusion m-is ambiguous, suggesting that reference to “physical injury” in the exception to exclusion m for “the loss of use of other property arising out of sudden and accidental physical injury to” the insured’s product or work after it has been put to its intended use is not defined within the policy. And PCS urges that “any damages based on actual ‘physical injury’ to PCS’s plant, equipment, or other property would [therefore] presumably not be excluded under this provision.”

But according to the undisputed facts established in this motion for. summary judgment, PCS’s claim is not for damages for physical damage to its plant, equipment and other property arising out of sudden and accidental physical injury to Arrowhead’s water supply. See and compare Gaylord, 98-2367 at p. 8, 753 So.2d at 355 (holding that damages sustained by plaintiff-manufacturer based on actual physical injury to manufacturer’s plant, equipment, or other property fell within the ambit of the identically-worded exception and therefore were not excluded under an identically-worded exclusion m of a CGL policy issued to defendant-insured, who had provided faulty equipment to plaintiff). And while PCS correctly points out that the term “physical injury” is not defined in the CGL policy issued to Arrowhead, words of a contract must be given their generally prevailing meaning. See La. C.C. art.2047. According to Webster’s International Dictionary 1706, 1164 (3rd ed.1993), “physical” is “of or relating to natural or material things as opposed to things mental, moral, spiritual, or imaginary”; and “injury” means “an act that damages, harms, or hurts.” We find exclusion m and its |7exception are unambiguous. Applying the generally prevailing meaning of the provisions setting forth the exception to exclusion m, we conclude the policy unambiguously provides coverage for loss of use to other property arising out of sudden and accidental physical injury to Arrowhead’s water supply after the water purification system was put to its intended use.

On the showing made, we find no outstanding issue of material fact on the applicability of the exclusion to the CGL policy issued by Commerce to Arrowhead, which excludes from coverage property damage to property that has not been physically injured arising out of a failure by the insured to perform a contract or agreement in accordance with its terms. Because Commerce has sustained its burden of proving the policy unambiguously excludes coverage, PCS’s claims for loss of use, associated with a breach of the Water Services Agreement by Commerce’s insured, Arrowhead, are correctly dismissed.

DECREE

The trial court’s judgment granting summary judgment in favor of Commerce and Industry Insurance Company is affirmed. All costs of this appeal are assessed against PCS Nitrogen Fertilizer, L.P. formerly known as Arcadian Fertilizer, L.P.

AFFIRMED.

      . Arrowhead, who did not participate in this appeal, answered PCS's lawsuit separately and has asserted no claims against its CGL insurer at this stage of the proceedings.

      . See La. C.C.P. art.1915.

      . Because we find the policy unambiguously excludes PCS's claim, which is solely for loss of use damages, we pretermit discussions on the issues of whether this breach of contract claim constitutes an "occurrence” under the policy as well as whether the contractual liability exclusion applies under the undisputed facts of this case.

      . PCS appears to assert that its status as an additional insured under Arrowhead's CGL policy triggers application of the exception to exclusion m. But according to the policy's terms, Commerce pays only those sums for which an insured become legally obligated to pay as damages. Because this action is a third party claim under the coverage, and not a first-party claim by an insured, we find the additional insured status is of no moment in this case.


author: I,KLINE, J.

text:
    Emerson J. JACKSON, Sr. v. SOUTHERN LIVESTOCK SUPPLY
    No. 2001 CA 2560.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Denied Feb. 3, 2003.

      Emerson J. Jackson, Sr., Baton Rouge, In Proper Person.

      Sandra S. Rester, Baton Rouge, Counsel for Defendant/Appellee Southern Livestock Supply.
    Before: FOIL, FOGG, and KLINE, JJ.

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

   I,KLINE, J.

This is an appeal by claimant, Emerson J. Jackson, Sr., challenging a ruling of the Office of Workers’ Compensation (“OWC”) sustaining the peremptory exception raising the objection of prescription filed by his employer, Southern Livestock Supply (“Southern”), and its insurer, State Farm Fire and Casualty Company (“State Farm”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 14, 1993, Mr. Jackson, while acting within the course and scope of his employment with Southern, injured his left knee when he jumped down from a boat to answer a phone call and landed on the concrete. As a result of the injury, Mr. Jackson underwent medical treatment to his left knee, with medical expenses being paid by State Farm. According to Sandy McKissick, a claims representative with State Farm, Mr. Jackson received temporary total disability (“TTD”) payments until June 1, 1994. Mr. Jackson returned to work at Southern full time in his previous capacity while undergoing treatment. He continued to work until February 28, 1997, when he was terminated for reasons unrelated to this claim.

On August 11, 1997, Mr. Jackson filed a disputed claim for benefits based upon the injury sustained in the June 14, 1993 accident. Mr. Jackson also included in his claim medical expenses sought as a result of treatment to his right knee. An exception of prescription was filed on February 21, 2001 by defendants Southern and State Farm. A hearing was held on the exception of prescription on March 9, 2001 and the OWC judge issued the following oral reasons for judgment:

This matter came for an exception of prescription today. This matter was originally heard on an exception of prescription on the 17th day of April 1998. At that time Judge Grout granted an exception of ... prescription finding that all the claims in Mr. Jackson’s petition, except those claims for continuing medical expenses for the treatment of [his] left knee, were prescribed and were, therefore, dismissed.
The matter was appealed to the 1st Circuit. The Court of Appeal found that because the matter was not prescribed on the face of the petition and there was no [sic]' — [e]xhibits were not admitted into evidence that the case should be remanded because |sthey could not find that the case had prescribed on the evidence before them.
Southern Livestock has re-urged [its] exception of prescription and [has] asked me to examine the petition and the accompanying attachments.
I’ve examined the deposition of Emerson Jackson and the deposition of Dr. Gerard Murtagh, the affidavit of Sandy McKissick (spelled phonetically) and the affidavit of Kathy Nicholas, all of which have been admitted into evidence by this court.
It’s fairly obvious from a perusal of the exhibits and the petition that was filed by Mr. Jackson that the last time he was paid temporary total disability benefits was on June 1st, 1994. He filed his claim on August 11th, 1997.
He has raised no issues that speak to this. The medical evidence is fairly straightforward, and I think that based on what has been admitted into evidence and the allegations that have been made that the exception of prescription should be granted; and, therefore, I find that all claims, except those relating to medical treatment for the left knee, are prescribed and are dismissed.

Judgment granting the defendants’ exception of prescription was rendered by the OWC and signed on March 9, 2001. It is from this ruling that Mr. Jackson appeals. He asserts the following assignments of error, in his appellate brief to this court, quoted herein verbatim:

1. The Workers’ Compensation Judge committed clearly wrong error in not distinguishing from which injury to left knee did time began to toll for causes of prescription.
2. The Workers’ Compensation Judge committed reversible error in not resolving the ultimate issue as stated by the Majority of First Circuit Court of Appeals, whether the injury to the left knee was causally connected to the right knee, which leaves an issue of law unaddressed.
3. The Workers’ Compensation Judge committed reversible error in denial of future medical benefits to injured claimant, in judgment of prescription.
4. The Workers’ Compensation Judge was in clearly wrong by the preponderance of evidence.
5. The Workers’ Compensation Judge was clearly wrong for not using a natural inference through human reasoning given by God.

LAW AND DISCUSSION

Regarding the prescriptive period for workers’ compensation benefits, La. R.S. 23:1209(A), provides, in pertinent part, 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 Rafter 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), or (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 within: (1) 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, in any event, no more than two years after the accident. Howard v. Trelles, 95-0227, p. 4 (La.App. 1st Cir.2/23/96), 669 So.2d 605, 607, writ denied, 96-0712 (La.5/3/96), 672 So.2d 690. Additionally, section 1209(C) provides that a claim for medical benefits prescribes one year from the date of the accident unless payments have been agreed upon, or unless a claim is filed within one year of the accident. Where payments have been made, the claim prescribes three years from the date of the last payment of medical benefits.

On appellate review, deference is given to a workers’ compensation judge’s reasonable decision on a question or matter properly within his discretion; however, if the workers’ compensation judge’s conclusion is based on its erroneous interpretation or application of law rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference. Love v. East Jefferson General Hospital, 96-1558, p. 5 (La.App. 1st Cir.5/9/97), 693 So.2d 1245, 1247.

A party pleading prescription generally has the burden of proving it. However, when a workers’ compensation claim to recover benefits has prescribed on its face, the claimant has the burden of showing that prescription has been interrupted in some manner. Love v. East Jefferson General Hospital, 693 So.2d at 1248; Brown v. Caddo Career Center, 28,111, p. 2 (La.App. 2nd Cir.2/28/96), 669 So.2d 712, 714, writ denied, 96-1042 (La.5/31/96), 674 So.2d 262. At the trial of a peremptory exception, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931. Generally, in the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations thereof are accepted as true. Our Lady of the Lake Hospital v. Vanner, 95-0754, p. 3 (La.App. 1st Cir.12/15/95), 669 So.2d 463, 464, cert. denied, 525 U.S. 818, 119 S.Ct. 57, 142 L.Ed.2d 45 (1998).

In the instant case, the issue presented by this appeal is whether OWC erred in sustaining the peremptory objection raising the exception of prescription. A hearing was held on March 9, 2001 on the exception at which Southern offered exhibits, including claimant’s deposition and a treating physician’s deposition. The record reflects that Mr. Jackson suffered a work-related injury on June 14, 1993, in which he injured his left knee. He received medical treatment for his left knee and received temporary total disability benefits and medical benefits as a result. The last payment of temporary total disability benefits was on June 1, 1994. For most of the time that Mr. Jackson was treated for his left knee, he worked full time in his pre-injury capacity. Mr. Jackson was terminated in 1997. He then filed a disputed claim for benefits in August of 1997. More than three years passed between the date of the accident and the date the disputed claim was filed. Also, the date of Mr. Jackson’s last TTD benefit payment was June 1,1994. More than one year passed before Mr. Jackson filed his claim. Mr. Jackson’s claim has clearly prescribed on its face. As a result, Mr. Jackson has the burden of proving that prescription was in some way interrupted.

Mr. Jackson argues that the injury has now manifested itself in the right knee, and as a result should be treated as a developing disability. We do not discuss the issues of whether or not Mr. Jackson’s injury constitutes a “developing disability” or when such a “developing disability” may have manifested itself. Even if Mr. Jackson filed his claim within one year from the date the disability manifested itself, he did not file his claim within two years from |fithe date of the accident, which is the outside prescriptive limit for filing compensation claims under La. R.S. 23:1209(A). Love v. East Jefferson General Hospital, 693 So.2d at 1248. See Lynn v. Berg Mechanical, Inc., 582 So.2d 902, 910-911 (La.App. 2nd Cir.1991).

Mr. Jackson also contends that the prescriptive period should start at the time of his termination, when his injury became fully manifest into disability. He also argues that, although he continued to work, he could not perform his duties of labor, and as such, prescription was interrupted. Our jurisprudence is well settled, providing that payment of wages in lieu of compensation will interrupt prescription as will compensation payments. Love v. East Jefferson General Hospital, 693 So.2d at 1248; Warren v. H & W Steel Erectors Inc., 569 So.2d 178, 182 (La.App. 1st Cir. 1990). The test for determining if the wages paid were in lieu of compensation is whether or not the wages were actually earned. Id. Mr. Jackson returned to work not long after he incurred his work-related injury. According to his own deposition testimony, he performed the same kinds of duties he performed prior to the accident. His only restriction, as related by him, was that he could not stand for long periods of times. He was paid the same amount in wages after his injury as he was paid prior to the accident. Mr. Jackson was terminated in February of 1997. The only reason given by Mr. Jackson was that he was told by his employer that they “don’t agree.” Never did he indicate that his termination had any relation to his claim or injury. As a result, we find that this assignment of error lacks merit.

Mr. Jackson failed to file his claim within the time frame allowed under the law. Each prescriptive period as set out under La. R.S. 23:1209(A) has passed. As a result, we find that the OWC did not err in finding that Mr. Jackson’s claim had prescribed.

| CONCLUSION

For the foregoing reason, we find that the OWC correctly sustained the peremptory exception raising the objection of prescription filed by defendants, Southern Livestock and State Farm Fire and Casualty Company, and the OWC judgment is affirmed. Costs of this appeal are assessed to Emerson J. Jackson, Sr.

AFFIRMED.


author: J^FITZSIMMONS, J.

text:
    KEVIN ASSOCIATES, L.L.C. (Successor in Interest Through Merger to Yendis Properties, Inc.) v. Brett CRAWFORD, Secretary of the Department of Revenue, State of Louisiana.
    No. 2001 CA 2652.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Denied Dec. 19, 2002.

      Frederick W. Bradley, Nicole Crighton, New Orleans, Counsel for Plaintiff-Appel-lee Kevin Associates, L.L.C.
    John J. Weiler, Cloyd F. Van Hook, Theodore D. Vicknair, New Orleans, Counsel for Defendant-Appellant Brett Crawford, Secretary of the Department of Revenue, State of Louisiana.

      Before: FITZSIMMONS, GUIDRY and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

This appeal by Brett Crawford, Secretary of the Department of Revenue, State of Louisiana (Department), challenges the trial court’s decision that Kevin Associates, L.L.C. did not owe income taxes to the State of Louisiana. The answer to the Department’s appeal alleges that the trial court’s award of $28,700.00 in attorney fees exceeded the scope of a remand to it and was “excessive, unprecedented and unfair.” For the following reasons, this court affirms.

Kevin Associates, L.L.C. is the successor by merger to Yendis Properties, Inc. (Yendis). Yendis was the name of the corporation under review at the time of the tax charges by the Department. Throughout the entirety of the record the corporation is referred to as “Yendis;” therefore, Kevin Associates, L.L.C. is hereinafter referred to as “Yendis” in this decision. On appeal, the Department urges that the court manifestly erred when it failed to find the following: the commercial domicile of Yendis was in the State of Louisiana; Yendis was subject to the jurisdiction of Louisiana for the purpose of Louisiana corporate income and franchise taxes; and Yendis was subject to Louisiana corporate income and franchise taxes.

In 1991, Yendis, a subsidiary of K & B Incorporated (K & B), was established as a Delaware holding company along with two sister Delaware corporate subsidiaries, Virginia Corporation and Valerie Corporation. Virginia Corporation possessed the stock of the operating companies, K & B Alabama Corp., K & B Florida Corp., K & B Louisiana Corp., K & B Texas Corp., K & B Mississippi Corp., and K & B Tennessee Corp. Various subsidiaries of Yendis owned real estate that was leased to K & B drug stores. The income tax 13assessment by the Department at issue in this case is based on accrued interest from loans Yendis made to Virginia Corporation.

It is uncontested by the parties that the primary reason for establishing Yendis as a Delaware corporation was to accomplish tax advantages. The minutes from the first annual meeting of the board of directors of Yendis state that its business purpose was “to receive dividends from its subsidiaries and make loans to affiliated debtor corporations.”

COMMERCIAL DOMICILE

Generally, “the tax situs of ‘intangibles’ is at the domicile of their owners.” North Baton Rouge Development Company, Inc. v. Collector of Revenue, 304 So.2d 293, 296 (La.1974). Pursuant to La. R.S. 47:241 and 47:243, the situs of an incorporeal “upon which a non-resident individual realizes a profit as the result of a sale or an exchange thereof is deemed to be the domicile of the owner of that intangible, and the profit is allocable to the state of such domicile for income tax purposes unless the incorporeal has acquired a business situs elsewhere.” Johnson v. Collector of Revenue, 246 La. 540, 548, 165 So.2d 466, 468-469 (La.1964). Section 243 provides an exception to the rule of allocating profits for intangibles of the corporate taxpayer. “Commercial domicile” has evolved as a term that allows taxation of the activity or property of nonresident corporations by the state. That taxation only occurs when managerial activities have transpired in a quantity and of a type adequate to remove it from the realm of activities and properties located outside of the parameters of the taxing body. Any lesser burden has been held to constitute deprivation of property without due process of law. See North Baton Rouge Development Company, Inc., 304 So.2d at 297.

|4Yendis was formally domiciled in Delaware, where it established and maintained its only bank account. The Department, however, argues that, other than the payment for the rental of a file drawer in Delaware, the only significant flow of funds through the Delaware account consisted of annual dividends from its subsidiaries. These funds were wired from K & B’s bank account in New Orleans to the Yendis’s bank account in Delaware and then immediately wired from Yendis’s Delaware account back to the K & B New Orleans bank account on the same day as the loans made to Virginia Corporation. The Department, additionally, maintains that the records and management decisions actually originated and were arranged in Louisiana. These actions included the determination of dividends, as well as the preparation and maintenance of accounting records, which were later stored in Delaware. The Department further asserts that Yendis’s rental of a single drawer in a Delaware law firm for the retention of its records is not comparable to owning or renting office space in Delaware for purposes of establishing a “presence.” It notes that, although many meetings of the Board of Directors occurred in Delaware, four out of five of the directors lived in Louisiana, and an almost equal amount of board meetings actually transpired in Louisiana. Finally, much of the accounting work was prepared in New Orleans, and K & B paid a Louisiana accounting firm for Yendis’s tax return bills.

Yendis emphasizes that its sole purpose was to receive dividends and make loans. All dividends were received in Yendis’s bank account in Delaware and then transmitted to Virginia Corporation’s account in Delaware. The accounting records of all financial transactions were maintained in Delaware. Sydney Besthoff, majority stockholder and chairman of K & B, testified that, in fact, none of the loan funds were ever returned to Louisiana. We note that Yendis had no office, no employees and no bank account in Louisiana. All the annual meetings occurred in | ¡^Delaware. The corporation had no presence in Louisiana beyond owning stocks in various subsidiary corporations, and receiving dividends from them. Legal counsel for Yendis was located in Delaware. As such, Yendis did not avail itself of the benefits and protections of Louisiana, which might establish a commercial nexus to this state.

There has been no showing that Yendis was not legitimately incorporated as a Delaware holding company. A business decision by an entity, such as Yendis, to structure its corporation within the parameters of a tax exception so that it can minimize tax liability is valid for a taxpayer. United States v. Carlton, 512 U.S. 26, 36, 114 S.Ct. 2018, 2024, 129 L.Ed.2d 22, (O’Connor, J. concurring), quoting from Helvering v. Gregory, 69 F.2d 809, 810 (2nd Cir.1934), aff'd, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed.2d 596 (1935). Borrowing from Judge Learned Hand’s wit, a taxpayer “is not bound to choose that [financial] pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.” United States v. Carlton, 512 U.S. at 36, 114 S.Ct. at 2024.

Our review of the evidence does not reveal manifest error by the trial court in its determination that a sufficient nexus for the establishment of a commercial domicile in Louisiana was not demonstrated. Additionally, this court’s scrutiny of the specific corporate composition and activities associated with Yendis does not unveil any commercial activities that would constitute “doing business” in Louisiana. A non-resident parent company is not subject to the jurisdiction of Louisiana merely because of the existence of one of its subsidiaries in this state, See Jasper v. National Medical Enterprises, Inc., 94-1120, p. 7 (La.App. 1 Cir. 6/23/95), 657 So.2d 604, 608, writ denied, 95-1836 (La.10/27/95), 661 So.2d 1347. Accordingly, we affirm the trial court decision entitling Yendis to a refund of the taxes paid under protest, with interest.

¡ATTORNEY fees

On March 31, 2000, the Department filed a motion to compel production of several documents previously requested. Following a May 8, 2000 hearing, an order was signed by the trial court on May 26, 2000, compelling the requested production. Pursuant to a separate motion to compel discovery, the court issued another order on July 12, 2000, mandating that Yendis provide the Department with any documents relative to the incorporation, merger, or reorganization of K & B, Yendis, Virginia, and its subsidiaries, and to provide all correspondence with any law firm relative to any of the aforementioned activities. Following Yendis’s alleged failure to respond to the July 12, 2000 order, the Department filed a motion for sanctions on August 24, 2000.

A judgment was signed on October 28, 2000, in which the court awarded the Department the sum of $20,000.00 in attorney fees. On March 7, 2001, the first circuit court of appeal granted writs filed on behalf of Yendis. This court stated that the Department had not proven which of its expenses were caused by Yendis’s failure to obey the trial court’s order. The case was remanded to the trialcourt to “determine and order the payment of reasonable costs, including attorney fees, caused by relator’s failure to obey the trial court’s order.”

At the May 7, 2001 hearing, the Department attempted to introduce evidence of the failure by Yendis to comply with the May 26 court order, which purportedly resulted in the Department attempting to obtain documents via another more complicated and expensive means. Yendis contested the fact that the hearing addressed both court orders, arguing that it should be limited to the July 12 order that had been remanded for a hearing by the first circuit. The court ultimately ruled that it was not limited to evidence associated with the remanded order because the procedural issue involved a La. C.C.P. art. 1471 sanction.

1 ./Louisiana Code of Civil Procedure article 1469, which addresses motions for an order compelling discovery, expressly requires reasonable notice by the parties prior to the court’s order to compel and award of attorney fees. The provisions of La. C.C.P. art. 1471, thereafter, address situations in which an Article 1469 order has been issued, but ignored. Article 1471 provides, in pertinent part: “If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just ... or in addition thereto, the court shall require the party failing to obey the order ... to pay the reasonable expenses, including attorney’s fees, caused by the failure .... ” Article 1471 is thus distinguishable from Article 1469 in that it broadly authorizes the court to redress a recalcitrant party’s failure to conform to the court’s Article 1469 order to compel. Thus, the trial court did not err in receiving argument on both the May 26, 2000 and July 12, 2000 court orders.

At the hearing, the Department alleged that Yendis’s lack of response resulted in the Department’s attempt to obtain documents from third parties, including a trip to Delaware to ascertain the extent of a corporate presence of Yendis. In support of its claim for attorney fees, the Department submitted a detailed bill for services rendered between July 5, 2000 and April 30, 2001. The statements, which consisted of a total legal bill approximating $160,000.00, contained color-coded markings that delineated the $28,700.00 portion relegated to obtaining the evidence associated with the two orders.

Cloyd Van Hook, a tax attorney who participated in the instant litigation, testified that Yendis contravened the various discovery requests in both orders and consistently failed to provide the Department with documents relative to Yendis, K & B, and the sister subsidiary corporations of Yendis. Based on the evidence presented at the hearing, the court ultimately awarded the Department the requested amount of $28,700.00. While such a large sum appears at first blush to |sbe excessive, given the documented statements of the hours devoted to discovery attempts due to the lack of cooperation by Yendis, we cannot say that the court abused its discretion. Montet v. Lyles, 93-1724, p. 7 (La.App. 1 Cir. 6/24/94), 638 So.2d 727, 731, writ denied, 94-1985 (La.11/18/94), 646 So.2d 377.

For the foregoing reasons, the decision of the trial court is affirmed in all respects. Costs associated with this appeal, in the sum of $5,535.60, are assessed such that Brett Crawford, Secretary of the Department of Revenue, State of Louisiana, shall bear seventy-five percent of the costs, equaling $4,151.70, and Kevin Associates, L.L.C. shall pay twenty-five percent of the costs, or $1,383.90.

AFFIRMED.

GUIDRY, J., concurs.

      . Valerie Corporation owned and held the intellectual property rights of K & B.

      . November 19, 1991 Annual Meeting of the board of directors of Yendis in Wilmington, Delaware.