author: | .MARION F. EDWARDS, Judge.

text:
    Robert LAY, Jr., Individually and on Behalf of His Minor Son, Robert Anthony Lay v. Raymond VICKERS and Colonial Penn Insurance Company.
    No. 02-CA-667.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Gordon Hackman, Boutte, for Appellant.
    David I. Bordelon, Albert D. Giraud, Metairie, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   | .MARION F. EDWARDS, Judge.

Appellant, Robert Lay Jr., (Lay) appeals a judgment of the district court awarding him damages in the amount of $8,298.56, as the result of damages suffered in an automobile accident. We affirm.

On July 7, 1999, Lay, with his minor son Robert, a passenger, was driving a 1976 Chevrolet on La. Highway 18 when a Chevrolet Suburban driven by defendant Raymond Vickers (Vickers) pulled into his path and struck his vehicle. Colonial Penn Insurance Company (Colonial Penn) was Vickers’ liability insurer. Lay filed suit in the 29th Judicial District Court. Prior to trial, the claims for young Robert were dismissed due to settlement.

Prior to trial, Colonial Penn stipulated that Vickers was at fault in the accident. Thus, the only issue at trial was the amount of damages. The trial court heard the testimony of Lay and medical depositions of the treating physicians were entered into evidence. At the conclusion of trial, the court took the matter under advisement, and ultimately rendered judgment in the amount of $8,298.56. The Lcourt found that the only injuries proven to have been caused by the accident were soft-tissue injuries treated by Dr. Patrick Stumpf. The court found that Lay did not prove his claim for lost wages, because he presented no evidence whatsoever to show that he was under physical restrictions from a doctor which would have prevented or restricted him for doing any type of work. The court further determined that Lay did not prove that his shoulder pain was caused by the accident.

After trial, in November 2001 Colonial Penn tendered a check in the amount of $9,242.81, representing the amount of judgment plus interest that Colonial Penn had calculated as of the date of tender. A Satisfaction of Judgment accompanied the check. Counsel for Lay determined to take a devolutive appeal, and the check was not negotiated. Colonial Penn substituted an Acknowledgement of Receipt of Funds for the Satisfaction of Judgment.

The relationship between counsel for the parties became acrimonious. Counsel for Lay requested Colonial Penn’s calculation of interest, principal and costs, and eventually voided the draft tender. Lay appealed in December 2001, and several days later, Colonial Penn filed a multi-faceted motion, requesting the court to acknowledge the tender, to hold that legal interest on the principal amount ceased running as of the date of receipt of tender, and to order that Lay be “barred from attempting to take any further action regarding the principal amount awarded in this Court’s October 29, 2001 final judgment. ... while a replacement draft is being processed and forwarded to replace the tendered draft ...”

The court set the motion for hearing for January 28, 2002. Subsequent to Colonial Penn’s motion, on January 8, 2002 counsel for Lay sent a letter to Colonial Penn, stating simply that “We are going to be executing on the judgment.” On January 9, 2002, Colonial Penn filed a Motion for Emergency Restraining Order, requesting the court to bar Lay or his attorney from attempting |4to execute on the judgment. The trial court granted the order and stayed all matters pending the January 28th hearing. On January 10, pursuant to a Motion to Continue filed by Lay, the matters were reset for March 25, and the court continued the restraining order in effect. Lay filed a Motion to Dissolve Temporary Restraining Order and For Damages Including Attorney’s Fees and Sanctions. The court denied the motion to dissolve, and set the remaining matter for hearing on March 25. Also set for hearing that day was a motion to reduce the estimated appeal costs filed by Lay.

On March 13, counsel for both parties filed an Acknowledgement of Receipt of Funds into the record, in the amount of $9,948.69. The pleading stated the funds were paid as the value of the judgment, including interest and costs, “to avoid ex-ecutory process and to avoid continued accrual of legal interest. All parties ... reserve all rights of appeal. Plaintiff does not agree this is full payment, only payment on account. Interest and costs are due until the check is honored.”

On March 25, 2002, counsel for Lay was not present at the time scheduled for hearing, and the court continued with its regular docket. Later on that day, when Lay’s attorney still did not appear, the court dismissed the motion for sanctions and attorney fees as well as the motion to reduce appeal costs. Colonial Penn withdrew its motion to acknowledge tender of funds. Judgment on the various motions was rendered on April 5, 2002, and Lay moved for a new trial, which motion was granted. At the hearing, counsel for Lay agreed that the check ultimately accepted was the correct amount, and all parties agreed that the restraining order was rendered moot. The court denied the request for damages and attorney fees after refusing to let Lay cross-examine counsel for Colonial Penn. Lay has also appealed that judgment.

At trial, Lay testified that he retired from Texaco shortly before the accident, on June 2, 1999. He was physically sound prior to the accident, but immediately | ¡¡afterwards he began to have pain from his neck to his shoulder. He saw his doctor, Dr. Patrick Stumpf, that same day. His pain was severe. He considered his shoulder pain and neck pain to be “the same thing.” His neck and shoulder injuries did not clear up, and after his insurance changed, he went to see Dr. Russo. That physician referred him to Dr. Grimm, an orthopedic surgeon, about 13 months after the accident. His shoulder pain was not as great as his neck pain, and hence he did not complain to the doctors about it earlier. Around March 2000, he was sawing some wood with a chain saw when his shoulder pain increased.

After the accident, he received a telephone call asking him to go back to work, but he was unable to return, due to his injuries. If it were not for his physical pain, he was capable of returning to work, and would have done so. The job would have required climbing towers in vessels, which were about three hundred feet high. None of his doctors told him that he should not take the job. Lay also had a dump truck, with which he could work several days a week, but did not miss any of that work because of the accident. That was a different type of labor than was offered at Texaco. Although he was in business, he did not get any jobs. In May 2000 he got a job with the parish as a laborer, but worked in pain.

The deposition of Robert Holland, Lay’s supervisor at Texaco, was admitted into evidence. He stated that Texaco had closed a portion of its plant, and that Lay accepted a retirement package. Shortly thereafter, Texaco determined to resume its operations and Holland was able to rehire some employees as contract workers. He called Lay, who related that he would like to return, but he had been in an accident and could not physically perform the job. Lay complained that his back was injured. The rehired employees would have received between $20-22 per hour. Holland told Lay to call him if things changed. The job consisted of climbing ladders on high towers, and opening and closing valves with a large wheel. Based on what Lay told him, Lay could not have performed the job.

16Roy Griffin, a fellow employee of Lay’s at Texaco, testified by deposition that Lay told him he would have liked to return to work, but could not because of his condition. When he was rehired, he was making $20.50 per hour. The job was supposed to last from three weeks to three months.

Dr. Patrick Stumpf disclosed in his deposition that he treated Lay prior to the accident for diabetes. Lay came to him on July 7,1999 at which time he stated that he had been in a motor vehicle accident, and complained of pain in his neck, right knee, hands, and left elbow. He had a decreased range of motion and pain on motion in his neck. There was a paracervical muscle spasm in the back of his neck, an abrasion over his left elbow, and pain on motion in his right knee. The physician diagnosed a contusion of the right knee and left elbow, neck sprain, and hand strain. He prescribed a muscle relaxer and pain medication. Activities were not restricted at that time. Lay saw Dr. Stumpf again on August 3, 1999, at which time he had complaints about neck pain related to the accident. At this time, while there was some posterior cervical muscle spasm, Lay had a good range of motion in the neck. In November 1999, Lay was still complaining of neck pain and still had mild spasms and pain on motion. That was the last time Dr. Stumpf treated Lay prior to his deposition. If Lay had developed bursitis as a result of the accident, he would have had shoulder complaints in the two months following the accident, and Dr. Stumpf had no such notations of pain.

Dr. Michael Russo, a family practitioner, first saw Lay in August 2000 for diabetic treatment, neck and shoulder problems. Dr. Russo diagnosed bursitis that, according to his testimony, could have developed without trauma. There was no direct evidence that the accident was directly related to the bursitis, and if it were, it would have shown up sooner than three months after the accident. However, it was not impossible that the shoulder problem developed as a result of some of the injuries. The bursitis was treated conservatively with medication and exercise. On phis visit in November 2000, he continued to 'complain of shoulder pain as well as neck pain, and x-rays were recommended. His x-ray showed no fracture or disease, and the diagnosis was cervical spasm, which is usually an acute problem rather than a chronic condition. Shoulder x-rays appeared normal, although Lay still had pain. Physical therapy and injections were recommended, but Lay did not follow up. If he had no problems before the accident, there must have been some causal relationship between the accident and the pain. It would not be inconceivable for Lay to have had a neck problem that led to a shoulder problem. Although there is no proof that his shoulder problems have been present since the accident, based on the evidence there was a reasonable possibility of a connection.

Dr. Matthew Grimm, an orthopedic surgeon, saw Lay in December 2000. He deposed that based on his examination and Lay’s statements to him, he felt that Lay had a rotator cuff tendonitis and neck pain as a result of the accident. After age 50, rotator cuff injuries are very common and are due to wear and tear. Lay was 56 at the time he saw Dr. Grimm. Dr. Grimm gave Lay an anesthetic and inflammatory injection. He saw Lay again in January and February 2001, at which time he had improved although he still had stiffness in his shoulder. Physical therapy was recommended for his shoulder. If Lay had no shoulder pain before the accident, Dr. Grimm would find it reasonably possible that the accident caused the injury, although he could not so state with medical certainty.

Lay first assigns as error the failure of the trial court to grant damages for lost earnings or lost earning capacity. The reasons for judgment indicate that the trial court questioned Lay’s credibility on the issue of lost income. The court noted that in his deposition, Lay stated that he was not making a claim for lost wages, yet at trial he maintained that he had lost out on a job which he could not physically perform. The deposition of Mr. Holland verifies that Lay was called to return to work, and that he declined due to pain from his accident. However, as the trial |Rcourt also noted, there was no notation from any treating physician that Lay was unable to perform any physical activity. Further, Lay testified that the reason he did not earn income with his dump truck was due to the lack of business opportunities, and that he worked with it when he had jobs.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Based on the record in its entirety, we find nothing to indicate an abuse of the trial court’s discretion. This assignment of error is without merit.

Lay also urges that the trial court erred in failing to award adequate damages for both his neck and shoulder injuries. In brief, Lay appears to argue that he should have been granted damages for injuries to his shoulder. The court found that each of Lay’s doctors thought the shoulder symptoms should have manifested themselves earlier had they been caused by the accident.

Lay testified that he did not have any pain moving his shoulder when Dr. Stumpf treated him, and did not feel a substantial increase in pain until March 2000 when he was sawing logs. Nonetheless, after November 1999, he did not see any physician until Dr. Russo in August 2000. The strongest testimony from the physicians who treated Lay was that there was a reasonable possibility that his shoulder pain was related to the accident. Each physician stated he would have expected an accident-related shoulder injury to manifest itself prior to August 2000.

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident that caused the injury. |aThe test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

The testimony of his treating physicians relative to causation was based on the hypothesis posed by counsel that the pain manifested itself continuously after the accident. The only evidence that Lay began to suffer constant shoulder pain immediately after the accident was his testimony, and that was ambiguous, considering that Lay admitted he had no complaint of shoulder pain when being treated immediately afterward by Dr. Stumpf. He did not seek medical treatment for that condition for 13 months, 5 months after he felt pain while using a chain saw. Lay’s burden of proof is preponderance of the evidence. After reviewing the evidence presented, we see no manifest error in the finding of the trial court that Lay did not prove a causal connection between his shoulder pain and the accident. This assignment of error is without merit.

In his third assignment of error, Lay avers the trial court erred in granting the temporary restraining order.

Under La. C.C.P. art.2088, the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches on the granting of the order of appeal, in the case of a devolutive appeal. 110Thereafter, the trial court has jurisdiction in the case only over those matters not renewable under the appeal, including the right to:

(1) Allow the taking of a deposition
(2) Extend the return day of the appeal
(3) Make, or permit the making of, a written narrative of the facts of the case
(4) Correct any misstatement, irregularity, informality, or omission of the trial record
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the-form, substance, and sufficiency of the appeal bond, and permit the curing thereof
(6) Grant an appeal to another party
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10)Set and tax costs and expert witness fees.

Although the trial court had jurisdiction to execute the judgment, which had been appealed devolutively, we find no authority in the article permitting the court to issue an order restraining Lay from attempting to execute on his judgment. Because the court was without jurisdiction to do so, the restraining order was improperly granted.

The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.

|nThe ruling of a trial judge on the issue of damages under Article 3608 should not be disturbed on appeal absent a clear abuse of discretion. The word “wrongful” in Article 3608 simply means incorrect, or the result of a mistake, and does not imply malice or bad faith on the part of the plaintiff. In the present case, Lay’s attorney did not appear at the hearing on his motion to dissolve, and the record does not indicate that he attempted to continue the hearing set for that date. The court was within its discretion to dismiss the motion under La.C.C.P. art. 1672.

Moreover, the court granted a new trial, at which time counsel for Lay failed to produce any evidence of damages or of attorney fees. The trial court gave him leave to proffer the testimony of Colonial Penn’s attorney, which testimony Lay sought to introduce at the hearing. However, Lay did not make the proffer, and the record is devoid of any evidence of damages suffered by Lay in the granting of the injunction. We see no error ih the refusal of the trial court to grant either damages or attorney fees. This assignment of error is without merit.

For the foregoing reasons, the judgment is affirmed. Plaintiff is assessed all costs of this appeal.

AFFIRMED.

      . Bernard v. Cox Communications, Inc., 01-1321(La.App. 5 Cir. 3/26/02) 815 So.2d 259, writ denied 2002-C-1157 (La.6/14/2002), 818 So.2d 782, citing Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

      . American Motorist Insurance Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757.

      . Mart v. Hill, 505 So.2d 1120 (La.1987); Maranto v. Goodyear Tire & Rubber Co., supra.

      . Housley v. Cerise, 579 So.2d 973, (La.1991); LaSalle v. Benson Car Co., Inc., 00-1459(La.App. 5 Cir. 1/30/01), 783 So.2d 404.

      . La. C.C.P. art. 3608.

      . Arco Oil & Gas Co., a Div. of Atlantic Richfield Co. v. DeShazer 98-1487 (La.1/20/99), 728 So.2d 841, 844.

        .Id., at 844.


source: Caselaw Access Project

license: Public Domain

text:
    Henry Kent MULLER, Sr. v. Jana Anne Martin MULLER and State of Louisiana Department of Social Services.
    No. 02-CA-683.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Henry Kent Muller, Sr., In Proper Person, Slidell, LA, for Appellant.
    Charles Williams, Jane Johnson, New Orleans, LA, for Appellee.
    Panel composed of Judges JAMES L CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   | .MARION F. EDWARDS, Judge.

The instant appeals are taken from two judgments of the district court relative to custody and contempt of court. We dismiss the appeal relative to custody, and annul and set aside the portion of the judgment relative to contempt.

The actions arose from and during the bitter divorce between Henry Kent Muller Sr. (Muller) and Jana Anne Martin Muller (Jana). The parties were ultimately divorced in March 2001.

Of their marriage, a child, Brian Garland Muller was born. In June 2000, Muller, in proper person, filed a Petition for Divorce, Incidental Matters, and Domestic Relief Under the Domestic Violence Abuse Act. In addition to divorce, the petition sought joint custody of Brian, with Muller as primary physical custodian, as well as child support and alimony. Numerous allegations against Jana were made in the pleading, and Muller sought a restraining order and permanent injunction enjoining Jana from abusing, harassing, or interfering with him. Jana responded with her own Rule for Custody and Temporary Restraining Order.

| sMuller continued to represent himself in the district court, as well as on appeal. Following a hearing by a domestic commissioner for the Parish of Jefferson in August of 2000, an interim judgment was rendered, and Muller was awarded interim custody of Brian, with Jana ordered to pay child support, medical expenses for Brian, and spousal support. She was granted visitation, and the court further ordered the parties to be evaluated.

In September 2000, Jana filed a Motion for Contempt, averring that Muller had refused to allow visitation. Muller filed his own contempt proceedings, alleging among other things that Jana had refused to attend a court-ordered seminar, refused to provide discovery, refused to pay child support, alimony, and medical expenses. At the hearing on the contempt motions, Jana tendered payment of all past due expenses. In a judgment rendered December 19, 2000, the court found her to be in contempt for failure to timely pay, and ordered her to pay Muller’s costs to bring the proceeding. The court then determined that because of the payment, Jana was purged of contempt. Further, Muller was found in contempt for failure to permit visitation, and sentenced to 30 days in prison, which sentence was suspended “on the condition that Henry Kent Muller not interfere with the court ordered visitation and that he pay the sum of $500.00 as attorney’s fees to Jana Anne Martin Muller, and that he pay her court costs in the amount of $125.00.” Both parties were ordered to submit to evaluation.

In February 2001 Jana filed a Motion for Temporary Custody, alleging that Brian was in danger of abuse. A Temporary Restraining Order issued, prohibiting Muller form abusing or punishing Brian and setting a hearing for a preliminary injunction. Attached to this pleading was an affidavit by Brian, detailing physical and mental abuse by his father.

Muller responded with a Motion For Contempt, averring that Jana violated a restraining order prohibiting her from harassing him, and also urging that the Rmotion for custody was baseless. Hearing on both actions proceeded in February 2001. Following that hearing, the court issued a judgment in March 2001, awarding Jana temporary primary physical custody of Brian, while maintaining joint custody. Among other things, child support payments due by Jana were terminated.

Muller appeals that portion of the March judgment that changes temporary physical custody from himself to Jana. The transcript indicates that the court determined to delay a final adjudication on the custody issue pending receipt of the evaluations undergone by the family.

This court has previously held that there is no appeal from a judgment awarding temporary custody. Such judgment is interlocutory in nature and we thus do not consider it on appeal.

Several rules were then set to be heard in May 2001, among them a Rule to Traverse Forma Pauperis status of Muller filed by Jana; a Rule to Return the Minor Child to Henry Muller; and a Rule to Compel Evaluation. Muller also urges error in the judgment emanating from that hearing, dated May 10, 2001, which states that:

... Henry Kent Muller, Sr. has already been found to be in contempt of this Court’s judgment of December 19, 2000, and is ordered to pay Jana Anne Martin Muller the sum of $625.00 on or before June 1, 2001, or pay $600.00 to Ms Les-lye Hunter of the Custody Center for which he will be given a credit against what he owes Jana Anne Martin Muller on or before June 1, 2001, or serve 30 days in jail in this parish.

On appeal, he appears to argue that there was no underlying or previous contempt, because the money which he was ordered to pay was “sanction in the form of an ‘attorney fee’ and not a contempt fíne.” As outlined above, Muller was clearly found in contempt of court in December 19, 2000 judgment, pursuant to a Isproperly filed rule, and he was ordered to allow visitation as well as to pay Jana’s attorney fees and court costs.

However, the record does not disclose any further rule to show cause for contempt against Muller for failure to pay those court costs and attorney fees set to be heard in May. The only contempt actions before the court in May 2001 were those motions filed by Muller against Jana. In the colloquy between the court and Muller, Muller explained to the court that he had not paid the fees and costs ordered in December because he intended to appeal that judgment. The court informed Muller that appeal delays had lapsed, and because Jana was also under an order to pay court costs to her former husband, attempted to facilitate matters. The court gave Muller the option to pay $600.00 to the court-ordered evaluator, Ms. Hunter, and $25.00 to Jana, or to pay Jana the $625.00 due. “I think it is reasonable to do. If you choose not to do that, I have no choice but to execute the 30 days in jail.”

Under La. C.C.P. art. 224, failure to pay the attorney fees and court costs would constitute constructive contempt. C.C.P. art. 225 states in pertinent part:

A. Except as otherwise provided by law, a person charged with committing a constructive contempt of court may be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt and punished accordingly. The rule to show cause may issue on the court’s own motion or on motion of a party to the action or proceeding and shall state the facts alleged to constitute the contempt. A person charged with committing a constructive contempt of a court of appeal may be found guilty thereof and punished therefor after receiving a notice to show cause, by brief, to be filed not less than forty-eight hours from the date the person receives such notice why he should not be found guilty of contempt and punished accordingly. The person so charged shall be granted an oral hearing on the charge if he submits a written request to the clerk of the appellate court within forty-eight hours after receiving notice of the charge.

IfiThe court here altered the substance of the December contempt finding, by ordering Muller to pay either Jana or Ms. Hunter, or else be in contempt. In the absence of a rule to show cause filed in accordance with the above statute, the court had no authority to conduct a contempt rule against Mr. Muller in May 2001 or to issue a judgment pursuant to any such proceedings. Therefore, that portion of the judgment dated May 21, 2001, must be annulled and set aside.

For the foregoing reasons, the appeal from the order dated March 2, 2001, granting Jana interim physical custody is dismissed. The portion of the judgment of May 21, 2001, ordering Muller to pay either Jana or Ms. Hunter, or else serve 30 days in jail, is annulled and set aside. Mr. Muller is ordered to pay costs of this appeal, and the matter is remanded to the district court.

APPEAL DISMISSED IN PART; JUDGMENT ANNULLED AND SET ASIDE IN PART; REMANDED.

      . Badeaux v. Riley 595 So.2d 1173, (La.App. 5 Cir.1992). See also Mills v. Wilkerson, 34,694 (La.App. 2 Cir. 3/26/01) 785 So.2d 69.


author: | .SOL GOTHARD, Judge.

text:
    Estella WILLIAMS v. JEFFERSON PARISH SCHOOL BOARD.
    No. 02-CA-696.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Olden C. Toups, Grant & Barrow, Gret-na, for Defendant/Appellant.
    Derrick D.T. Shepherd, Marrero, for Plaintiff/Appellee.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   | .SOL GOTHARD, Judge.

In this workers’ compensation case, defendant/employer, Jefferson Parish School Board (School Board), appeals a judgment finding that claimant/employee, Estella Williams, suffered a compensable injury and was entitled to receive temporary total disability benefits from August 13, 1999 through November 15, 2001. The judgment further ordered defendant to pay “medical bills and medication expenses, related to and arising from the incident of August 13, 1999, in .accordance with law.” The School Board was found to be arbitrary and capricious in its refusal to pay benefits prior to December 13, 2000 and penalties and attorney’s fees were assessed.

The record shows that on April 18, 2000 Estella Williams, who is employed with the Jefferson Parish School Board as a custodian, filed a disputed claim for Workers’ Compensation in which she alleged that she was injured in August 1999 when she inhaled toxic paint fumes. The School Board filed an answer denying the claim. The matter went to a trial on the merits on November 15, 2001, after which the judgment at issue herein was rendered.

At the hearing on the claim, the parties entered into stipulations regarding claimant’s rate of pay, the rate of compensation, and the amount of time of unpaid compensation. After discussion between the parties and the court, certain | .documentary evidence was accepted and some documents were the subject of a defense objection. The court made preliminary rulings on these issues and the matter proceeded to hearing.

The court heard testimony from claimant, Estella Williams. She testified that she has been employed at West Jefferson High School as a custodian for twenty-two years. As such, her job duties included emptying trash, cleaning bathrooms, dusting, and mopping. She has a seventh grade education and is able to read and write. Ms. Williams testified that in August, 1999 she arrived for work as she normally did and began her duties. When she entered one of the classrooms, a teacher and two others were painting the room. Although the window was open, Ms. Williams stated that there was “no air” in the room. The smell of paint was so strong that Ms. Williams was unable to complete the cleaning of the room. She tried to clean nearby rooms, but the paint fumes were strong enough to permeate the air in those rooms also. Ms. Williams stated that she told Ms. Cartwright, the disciplinarian, that the fumes were making her sick. Ms. Cartwright advised Ms. Williams to inform the principal, Dr. Mow-en. However, when Ms. Williams went to Dr. Mowen’s office, she was in a meeting and was unavailable. Ms. Williams testified that she then went to find a co-worker who often carries peppermints. She ate three peppermints, but she continued to cough and be nauseated. She went outside to catch her breath and get some fresh air. When she felt better she returned to work in a different section of the school. When she got home she began to feel worse and decided to go to West Jefferson Hospital emergency room later that night. However, after she stayed for several hours without seeing a doctor, she went to a nearby drug store and asked the pharmacist for advice. He recommended some cough syrup, which she purchased, and went home. She used the cough syrup and went to work the next day. Because her condition had not improved, she again went to the hospital for treatment. This time she was treated Rand admitted. Doctors informed Ms. Williams that she could not return to work, so she contacted her boss, Bo Rodriquez, and told him of her condition. At that time her treating physician was Dr. Rhonda Kroll. Dr. Kroll referred claimant to Dr. Elaine LaNasa. After Dr. LaNasa reviewed the results of tests taken, she told claimant not to return to work. When Ms. Williams realized she could not work, she requested a leave of absence without pay from the School Board because she did not know how long she would be unable to work.

Ms. Williams testified that prior to the incident with the paint fumes, she had gone to the emergency room at the hospital about three or four times because of shortness of breath and mucus buildup in her lungs. She testified that she now needs oxygen and an inhaler to breathe. She stated that she went to Meadowcrest Hospital in 1993 for treatment of pneumonia, but was able to return to her work as a custodian. She stated that she could not recall a hospital stay in 1998. She also testified that before the incident in question herein, she was breathing normally and was able to work, do household chores, and work in her garden. Now, the shortness of breath makes it impossible to do any of those things. She has been hospitalized since the incident and has incurred medical bills that remain unpaid by defendant.

On cross-examination, Ms. Williams denied a hospitalization in 1998, a chest X-ray in 1996, and complaints to Dr. Knoll regarding shortness of breath and excessive coughing. She admitted filing for and receiving social security benefits pursuant to an application in which she indicated she did not intend to file for workers’ compensation benefits.

Ms. Williams’ daughter, Terrine Williams, testified that before the inhalation of the paint fumes her mother could do a lot of things for herself such as cooking, household chores, and gardening. However,-since the incident those activities are severely restricted due to shortness of breath and difficulty breathing. | BMs. Terrine Williams testified that her mother was hospitalized on prior occasions for breathing related problems, but she always returned to normal after the treatments. She was able to continue working and doing normal home related activities.

Dr. Lisa Mowen, the principal at West Jefferson High School at the time of the incident in question, testified that the first time she became aware of Ms. Williams’ injury was on November 30, 1999. It was on that day that Ms. Williams brought in a document entitled “First Report of Injury” for a signature. Dr. Mowen stated that she knew Ms. Williams had requested a leave of absence for medical reasons, but she did not know the injury was work-related. Dr. Mowen stated that she does not recall if she contacted anyone in the workers’ compensation department about the claim.

Jane Patton of the Jefferson Parish School System testified that Ms. Williams came to her office on November 29, 1999 to report the injury. It appeared to Ms. Patton that Ms. Williams had made a claim to the disability insurance carrier that was rejected on the basis that it was a workers’ compensation matter. Ms. Williams seemed to be confused and was seeking direction. Ms. Patton called Dr. Mowen’s secretary and found that she was unaware of the incident. Ms. Patton asked Ms. Williams if she had informed anyone at the school of the injury and she responded that she did not. Ms. Patton advised Ms. Williams that, because she had not advised her employer of the incident within the required thirty days, her claim would be denied. That prompted Ms. Williams to make the first injury report to Dr. Mowen the next day.

Because the report was made over thirty days after the injury, a denial letter was sent to Ms. Williams. Ms. Patton did not recall whether any investigation into the matter, other than the call to the school, was made. On January 5, 2000, Ms. Williams’ daughter called Ms. Patton and asked which health care facility would | fiprovide care for her mother. Ms. Patton informed Ms. Williams’ daughter that the claim was denied and a second denial notice was sent out. Two days later, Ms. Williams called to inquire how she could appeal the denial of her workers’ compensation claim. Ms. Patton explained the process and gave Ms. Williams the telephone number for the district office of the department of labor. On May 4, 2000, Ms. Patton received a notice from the department of labor that a mediation conference was set for July 14, 2000. At that time, Ms. Patton had no medical records, bills, or information regarding Ms. Williams’ injury. The first medical information was received in August 2000, pursuant to a subpoena issued after the mediation. There were bills and balances due, but no diagnosis. Some bills indicated a heart related illness and treatment which Ms. Patton could not relate to anything contained in Ms. Williams’ report of injury. An independent medical examination with Dr. William Emory was set up and, after receiving his report, Ms. Patton concluded this was not a compensable matter. Ms. Patton concluded that this was a disability that should be covered by their insurance carrier and not a workers’ compensation matter. She stated that she wrote the denial letter to speed up the process of Ms. Williams’ claim for disability.

Dr. William Emory, an expert in pulmonary care, testified for the defense. He stated that he examined Ms. Williams on November 29, 2000, and reviewed her medical records, including X-rays taken at Meadowcrest in 1993 and 1996. His conclusion was that Ms. Williams has pulmonary fibrosis. Dr. Emory explained that in 80% of the cases in which such a diagnosis is made, the cause is unknown. He stated that it “tends to be something that presents as an insidious process over several months or years.” It tends to result in a cough and shortness of breath. Dr. Emory also testified that the inhalation of paint fumes would not be the causation of the condition. In regard to the effect of the inhalation of paint fumes on a patient with the pulmonary condition suffered by Ms. Williams, Dr. Emory stated |7that it would cause bronchitis, a cough and mucus production, but not structural changes in the cells lining the lungs. He estimated that the illness resulting from the exposure to paint fumes would last only a few days.

The record also contains the deposition of Dr. Elaine LaNasa, a board certified pulmonologist, who treated Ms. Williams after she was hospitalized in September 1999. Dr. LaNasa was called in for a consultation by Ms. Williams’ treating physician, Dr. Rhonda Kroll. At that time, Ms. Williams reported that she had been ill since she inhaled paint fumes at work in August 1999. She was treated for pneumonia, but did not respond well. She was admitted to the hospital on September 9, 1999. Dr. LaNasa examined the patient, reviewed chest x-rays taken upon admission, and ordered a biopsy of the right lung. Dr. LaNasa stated that Ms. Williams had damage to the air sacs of the lungs, and was given medication, breathing treatments, and oxygen. Dr. LaNasa treated Ms. Williams through the rest of 1999. Ms. Williams was' supposed to return in January for a visit, but she did not. Dr. LaNasa saw Ms. Williams again in March of 2000 when her condition had worsened and she was again hospitalized. At that time another chest x-ray was taken and that again showed the bilateral infiltrate. In July 2000, Dr. LaNasa ordered another chest x-ray and found that Ms. Williams’ condition had worsened. Further testimony shows that Dr. LaNasa’s ultimate diagnosis was diffuse alveolar damage from an undetermined cause. Dr. LaNasa reviewed the x-rays from 1993, 1996 and 1998. She found that Ms. Williams had infiltrates as far back as 1993. Dr. LaNasa testified that the x-rays showed abnormalities in the lungs, but she could not tell from a review of the x-rays if Ms. Williams had Granulomatis disease. Nor could she be certain that the x-rays showed a natural progression of an untreated lung disease. However, Dr. LaNa-sa opined that an exposure to chemicals would exacerbate the lung condition. She further stated that it is her belief that Ms. Williams began a “downhill spiral” when she inhaled the paint | Sfumes. Dr. LaNasa pointed out that Ms. Williams was able to continue working between 1993 and August 1999 despite the hospitalizations for her lung condition. However, since the inhalation of paint in August 1999, she has gotten worse and has been unable to work.

In the first two assignments briefed to this court, defendant argues that claimant forfeited her right to workers’ compensation benefits by making false statements regarding her prior medical history, and that her testimony is not credible. Defendant maintains that Ms. Williams’ false statements regarding her hospitalizations before the August 1999 incident in which she inhaled the paint fumes is sufficient to forfeit any benefits to which she may have otherwise been entitled. Defendant also argues the trial court’s finding that claimant was a credible witness is reversible error.

LSA-R.S. 23:1208 provides in pertinent part as follows:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The only requirements for forfeiture under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708 (La.9/5/95), 660 So.2d 7, 12. In a worker’s compensation case, as in other cases, we are bound by the manifest error rule and may not set aside the factual findings of the hearing officer absent a finding that they are clearly wrong or manifestly erroneous. Rivera v. West Jefferson Medical Center, 96-152, 96-153 (La.App. 5 Cir. 7/30/96), 678 So.2d 602. Reasonable evaluations of credibility and reasonable inferences of fact by the trial court will not be 19disturbed, even though our appellate review may lead us to another reasonable evaluation. LeBlanc v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1 Cir. 6/28/96), 676 So.2d 1157, 1161; Lee v. Alton Ochsner Medical Foundation, 01-650 (La.App. 5 Cir. 10/17/01), 798 So.2d 1225, 1229; writ denied, 01-3094 (La.2/1/02), 807 So.2d 853.

In the instant case, the court gave written reasons for judgment in which it found Ms. Williams to be a credible witness. We have reviewed the testimony and find that Ms. Williams did make false statements regarding her hospitalization in 1996 and 1998. However, her testimony of the incident of paint inhalation and the after effects are consistent with other evidence produced at trial. Further, although her testimony was inconsistent regarding her prior condition, she did testify to the fact that she had prior breathing problems. Overall, her testimony does not evince an attempt to give false statements for the purpose of obtaining workers’ compensation benefits. Given the record before us, we cannot find manifest error in the trial court’s finding that this claimant is entitled to benefits.

In the next two assignments, defendant argues the trial court was clearly erroneous in its finding that a compensable event occurred, or in the alternative, that a pre-existing condition was aggravated by the inhalation of paint fumes. As we noted in the above discussion, our review of the factual findings of the trial court are on a manifestly erroneous/clearly wrong standard. There is ample evidence to show that the claimant inhaled paint fumes in August 1999 while in the course and scope of her employment to warrant a finding that a compensable event occurred. Further, there is sufficient medical testimony to corroborate claimant’s testimony that her condition was aggravated by the inhalation of the fumes. Even defendant’s doctor admitted that such an incident would cause some injury, although he was not in agreement with the treating physician that the irritation would worsen the condition or last for a significant period of time. We find the 110record before us provides sufficient support for the trial court’s finding of facts and we cannot rule that the findings reach the level of manifest error or clearly erroneous. Accordingly, we find no merit in these arguments.

In the final assignment, the defendant asserts the trial court erred in that part of the judgment that provides for the payment of medical expenses and makes a punitive award for arbitrarily refusing to pay medical expenses. The judgment states, “the claimant, is entitled to the payment of only; the medical bills and medication expenses, related to and arising from the accident of August 13, 1999, in accordance with law.” Defendant objects to the lack of specificity in that ruling. We agree. The medicals introduced into evidence over defense objection are clearly more than is compensable for the injury suffered herein. Those medicals contain references to heart-related treatments and hospital visits. While the judgment correctly decrees that the medical payments compensable are limited to those which were incurred as a result of the August 1999 incident, it does not separate those expenses out from the medical documents entered into evidence. We hereby remand the matter to the trial court for that purpose.

Further, we find that the finding that defendant was arbitrary and capricious in the refusal to pay benefits is manifestly erroneous, given the facts of this case. Accordingly, we reverse that portion of the judgment that makes that finding and awards penalties and attorney’s fees.

For the foregoing reasons, the judgment appealed is reversed insofar as it finds defendant arbitrary and capricious and awards a penalty of $2,000 and attorney’s fees in the amount of $2,000. In all other respects the judgment is affirmed and the matter is remanded to the lower court for a specific finding on the amount of medical expenses compensable.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.


author: LSOL GOTHARD, Judge.

text:
    F. Kirby NEWBURGER v. Robert F. SHARP, M.D., et al.
    Nos. 02-CA-732, 02-CA-733, 02-CM-332.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Opinion Denying Rehearing Feb. 10, 2003.
    Benjamin R. Slater, III, Jerry B. Jordan, Slater Law Firm, New Orleans, LA, for Plaintiff/Appellant.
    Pierre V. Miller, II, Patrick, Miller, Burnside & Belleau, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   LSOL GOTHARD, Judge.

Plaintiff, F. Kirby Newburger, appeals from a decision of the trial court denying his exception of prescription to pending arbitration. We affirm the decision of the trial court.

Defendants filed arbitration proceedings before the National Association of Securities Dealers against plaintiff, alleging misdeeds in his capacity as securities broker and as trustee. Plaintiff sought injunctive relief to prevent arbitration against him, alleging that he acted only as trustee, and he never agreed to arbitration, therefore defendants’ recourse was through judicial means only. The trial court denied injunctive relief. Plaintiff appealed, and raised the issue of prescription for the first time. This court affirmed the denial of the preliminary injunction, and remanded for consideration of the exception of prescription.

On remand, the trial court denied the exception of prescription, finding that the issue of prescription was also subject to arbitration. Plaintiff now appeals from that ruling.

In Blanchard v. Petmecky, 97-659 (La.App. 5 Cir. 7/22/97), 709 So.2d 796, 797, writ denied, 97-2158 (La.11/14/97), 703 So.2d 633, this court noted the scope of the trial court’s supervision over arbitration matters:

laArbitration is a non-judicial method of resolving disputes and is favored as a matter of public policy, Cajun Electric Power Co-op, Inc. v. Louisiana Power and Light Co., 324 So.2d 475 (La.App. 4th Cir.1975). Courts are not authorized to take part in arbitration proceedings except in three limited circumstances. First, where one party refuses to arbitrate, the other may seek a court determination of whether there is a valid arbitration agreement. If the court finds such a valid agreement, then it must order the parties to submit to arbitration, La. R.S. 9:4203; Bartley v. Jefferson Parish School Board, 302 So.2d 280 (La.1974). Second, where an arbitration agreement does not specify how the arbitrators shall be appointed, or if one party fails, or refuses to name an arbitrator as per the agreement, then the court may make such appointments, La. R.S. 9:4204. Third, after an award is made, any party may petition to have the agreement vacated or amended, La. R.S. 9:4210-1211. Beyond these matters, the courts have no jurisdiction to further interfere in arbitration proceedings, Spencer v. Hoffman, 392 So.2d 190 (La.App. 4th Cir.1980). To rule otherwise would defeat the purpose of arbitration, which is to provide a speedy settlement of disputes out of court, Bartley, supra.

Once the court finds a valid and enforceable arbitration agreement, and a failure to comply therewith, the court shall order arbitration. Conagra Poultry Co. v. Collingsworth, 30,155 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280.

In this case, the court found that there was a valid and binding agreement to arbitrate. Plaintiff contends however, that he is entitled to a judicial ruling on whether the claims subject to arbitration have prescribed.

The arbitration clause at issue provides that:

I agree that all controversies that may arise between us concerning any transaction or the construction, performance, or breach of this Agreement, or any other agreement between us, pertaining to securities or other property, whether entered into prior, on, or subsequent to the date hereof, shall be determined by arbitration.

If the parties to a contract have explicitly agreed to submit all disputes to an arbitrator, then a determination that the contract is valid will necessarily suffice to require enforcement of the arbitration clause. Metro Riverboat Associates, Inc. v. Bally’s Louisiana, Inc., 97-1672 (La.App. 4 Cir. 1/14/98), 706 So.2d 553, writ denied, 98-0679 (La.5/29/98), 720 So.2d 339. The issue of prescription, like the others issues present, is subject to the agreement to arbitrate. Parker v. St. Tammany Parish Hospital Service District, 94-2278 (La.App. 1 Cir. 2/27/96), 670 So.2d 531, writ denied, 96-0805 (La.5/10/96), 672 So.2d 925.

RAccordingly, we find no error in the trial court’s denial of the exception of prescription. The judgment of the trial court is affirmed. All costs are assessed against appellant.

AFFIRMED.

REHEARING DENIED

Plaintiff requests a rehearing in this case arguing that an earlier panel of this court had required the trial court to conduct a hearing on his prescription claim, relying on Cohen v. Audubon Construction Corp., 404 So.2d 528 (La.App. 5th Cir.1981). However, as correctly noted by the trial court, Cohen is distinguishable from this case. Cohen involved a prescription issue that addressed the very validity of the arbitration agreement. The validity of the arbitration agreement is not at issue here. Rather, the prescription claim raised herein addresses issues covered by the arbitration agreement and, thus, are not to be heard by the trial court but are to be considered during arbitration. Parker v. St. Tammany Parish Hospital Service Dist., 94-2278 (La.App. 1st Cir.2/27/96), 670 So.2d 531, writ denied, 96-0805(La.5/10/96), 672 So.2d 925. Accordingly, the rehearing is denied.

/s/ Sol Gothard

JUDGE SOL GOTHARD

/s/ James L. Cannella

JUDGE JAMES L. CANNELLA

/s/ Clarence E. McManus

JUDGE CLARENCE E. McMANUS


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    Irene Marrero WALKER, Robert E. Walker, et al. v. Louis H. MARRERO, IV and Mary Badger Marrero Smith, et al.
    No. 02-CA-794.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    John M. McCollam, A. Gregory Grimsal, Jamie S. Manuel, Gordon, Arata, McGol-lam, Duplantis & Egan, L.L.P., New Orleans, LA, for Irene Marrero Walker, et al., Plaintiffs/Appellants.
    Perrin C. Butler, Butler & Butler, Me-tairie, LA, for Louis H. Marrero, IV and Mary Badger Marrero Smith, et al., Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

On February 18, 1992, the plaintiffs, Irene Marrero Walker and others, filed suit against Marie Delores Marrero Butler (Ms. Butler) and others claiming ownership interests in certain shares of stock of O.K. Farms Company, Inc. (OKF), which is now liquidated. They assert that the defendants illegally and improperly received distributions of the corporate assets on October 18, 1982, during the liquidation and dissolution of OKF and that the plaintiffs did not receive them interests in the corporate assets.

On May 6, 1992, Ms. Butler filed a Peremptory Exception of Prescription asserting that the plaintiffs’ claims against her were not timely instituted, pursuant to LSA-R.S. 12:93 D. A hearing on this exception was held on October 31, 2001. On November 16, 2001, the trial court rendered a judgment granting Ms. Butler’s Exception of Prescription. It is from this judgment that the plaintiffs appeal. For the reasons which follow, we reverse this ruling of the trial court and remand to the trial court for further proceedings.

¡^DISCUSSION

On appeal, the plaintiffs argue that the two-year prescriptive period set forth in LSA-R.S. 12:93 D does not apply to the plaintiffs’ cause of action claiming ownership of their proportionate shares of the corporate assets of OKF.

LSA-R.S. 12:93 D provides as follows:

Every shareholder who receives any unlawful dividend or other unlawful distribution of assets shall be liable to the corporation, or to the creditors of the corporation, or to both, in an amount not exceeding the amount so received by him. An action to enforce this liability must be brought within two years from the date on which the unlawful distribution was received, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit. (Emphasis added.)

The plaintiffs argue that this statute does not apply to their claims against Ms. Butler, because it fixes a two-year limitation for suits against shareholders for liability “to the corporation or to the creditors of the corporation, or to both,” and they assert that the plaintiffs do not fall into either of these categories.

In support of their position, the plaintiffs cite Reiss v. Superior Industries, Inc., 466 So.2d 542 (La.App. 5 Cir.1985), in which the heirs of a deceased shareholder filed suit to set aside a stock bonus to other shareholders. The defendant shareholders, who were also directors of the corporation, argued that LSA-R.S. 12:92 D provides a two-year prescriptive period for liability “to the corporation or to the creditors of the corporation, or to both,” and therefore, this article did not apply to the plaintiffs’ claims against them.

LSA-R.S. 12:92 D provides:

“If any dividend shall be paid in violation of this Chapter, or if any other unlawful distribution, payment or return of assets be made to the shareholders, or if the corporation purchase or redeem any of its own shares in violation of this Chapter, the directors who knowingly, or without the exercise of reasonable care or inquiry, voted in favor thereof shall be liable jointly and severally to the corporation, or to the creditors of the corporation, or to both, in an amount equal to the amount of the unlawful Ldistribution. An action to enforce such liability must be brought within two years from the date on which the distribution was made, and this time limit shall not be subject to suspension on any ground, nor to interruption except by timely suit.” (Emphasis added.)

In Reiss, supra at 543, this Court held that the prescriptive period set forth in LSA-R.S. 12:92 D did not apply to the plaintiffs’ suit, because this statute was “concerned with the cause of action in favor of the corporation or to its creditors,” and the plaintiffs, who were heirs of a shareholder, did not fall into either category.

Both LSA-R.S. 12:92 D and 12:93 D contain identical language providing for a two-year prescriptive period for liability “to the corporation, or to the creditors of the corporation, or to both.” Therefore, we find that this Court’s reasoning in Reiss is applicable to the instant case, and the prescriptive period set forth in LSA-R.S. 12:93 D does not apply to the plaintiffs’ case against Ms. Butler. Accordingly, the trial judge was incorrect when she granted Ms. Butler’s Exception of Prescription on this basis.

For the reasons set forth above, we reverse the ruling of the trial court granting the defendant’s Exception of Prescription based on LSA-R.S. 12:93D, and we remand this matter to the trial court for further proceedings consistent with .this opinion.

REVERSED AND REMANDED.


author: LMARION F. EDWARDS, Judge.

text:
    P.S. CHEZ SIDNEY, L.L.C. v. ACADIANA FISHERMAN’S CO-OP.
    No. 02-CA-830.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      David M. Kaufman, Lafayette, for Appellant.
    William W. Hall, Metairie, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and MARION F. EDWARDS.
   LMARION F. EDWARDS, Judge.

Acadiana Fisherman’s Co-Op (Acadiana) appeals a judgment of the district court denying its Exception of Improper Venue. We affirm.

Plaintiff, P.S. Chez Sidney L.L.C. (Chez Sidney) filed a petition against Acadiana in the 24th Judicial District Court for the Parish of Jefferson. The petition alleged that in 2001, Acadiana entered into an agreement to cut alligator meat from the Louisiana wild alligator season for Chez Sidney, at a certain price per pound. According to the pleading, Acadiana overcharged Chez Sidney in the amount of $8,741.47, which amount Chez Sidney sought to recover.

In response, Acadiana filed Exceptions of Lack of Procedural Capacity and Improper Venue. The first exception was withdrawn, leaving only the issue of venue for the trial court to determine. Following a hearing, the court denied the exception. Acadiana appeals.

It is well settled that where an exception to the venue is overruled, irreparable harm occurs and the ruling is subject to review by an appellate court, ^either via appeal or supervisory writs. Because of the nature of the issues herein, we have determined to address the present case via our appellate jurisdiction.

In its exception, Acadiana averred that it was an unincorporated association with its principal business establishment in St. Martin Parish. It was further urged that the action was either a tort or breach of contract, either of which allegedly occurred in St. Martin Parish. Chez Sidney is a large alligator farming operation with its principal offices in Kenner, in the Parish of Jefferson.

At the hearing on the exception, Gabriel LeBlanc, plant manager of Acadiana, testified that the principal place of business of his company is in St. Martin Parish, and that he has no business establishments in Jefferson Parish. Sidney Guidry (of Chez Sidney) approached him, at the plant in St. Martin, about the possibility of processing alligator meat. The men discussed it and decided to proceed with the agreement. Chez Sidney would furnish Acadiana with alligator carcasses and Acadiana would de-bone at a certain price per pound. On the first day of production, Chez Sidney’s chief executive officer, Zach Casey, came by and witnessed the operation. The processing and packing of the alligator meat was performed in St. Martin, the bills were prepared and payment received there. Chez Sidney’s employee picked up the meat from the St. Martin facility. No work was done, no bills paid, nor products delivered by Acadiana, in Jefferson Parish.

On cross-examination, LeBlanc stated that Acadiana invoiced P.S. Chez Sidney, which was an affiliate of another company named “Pelts and Skins.” LeBlanc understood that Guidry was representing Mr. Casey as manager of Chez Sidney’s plant in Catahoula and that Casey was the chief executive officer of the company. When negotiating the conditions of the agreement, LeBlanc knew that Casey would have final say on the terms. Payments received by Acadiana were paid from Chez Sidney in Kenner, Louisiana. LeBlanc agreed that the Chez 14Sidney’s office was in Kenner. According to LeBlanc, Casey did not contact him at any time prior to the processing of the meat, and the agreement was reached between himself and Guidry.

Sidney Guidry testified that he is the manager of Chez Sidney’s processing plant in Catahoula, in St. Martin Parish. In years past, the company had too much work skinning alligators and had contracted the meat processing to different plants. Acadiana was one plant of which Guidry was aware, and Mr. Casey, Sidney’s boss, authorized him to talk to LeBlanc. Casey makes the ultimate business decisions of Chez Sidney. The agreement with Acadia-na was reached after speaking with both LeBlanc, in St. Martin, and meeting with Mr. Casey, the owner, in Kenner. Guidry himself did not have the authority to agree to a contract.

Zachary Casey testified that he is the Chief Executive Officer of Chez Sidney, with its registered office in Kenner. He handles all the finance issues of the company, and makes the ultimate business decisions. The operation produces alligators from the wild season in September. There is a large production to be handled in September that is too much for his plant to handle. The company sought a supplier who could provide the service of cutting the overflow production in September. He sent Mr. Guidry to inspect Acadiana’s facilities to ensure the company was capable of handling the operation. After ascertaining that the company could perform, Casey called LeBlanc from his Kenner office to offer him a price per pound, which offer Le Blanc accepted. Casey informed Guidry of the agreement with LeBlanc. It was Guidry’s job to assure quality control, making certain the proper sanitation measures were in place and that there were sufficient personnel. Guidry did not have authority to contract with Acadiana. The contract with Acadiana was oral.

The trial court stated that all parties had been truthful, but while Guidry entered into a contract with LeBlanc in agreeing to process the meat, the price had |Rnot been established until after Casey spoke with Leblanc. The court found “the completion of that contract as done in two venues.” The exception was denied.

On appeal, Acadiana urges the present suit is one on open account thus that venue is governed by La. C.C. P. art. 42:

The general rules of venue are that an action against: (3) A domestic partnership, or a domestic unincorporated association, shall be brought in the parish where its principal business establishment is located.

Citing another case out of this court, Acadiana avers that a suit on open account is not governed by La. C.C. P. art. 76.1. However, while not styled as such, the instant petition is plainly one alleging breach of contract. Its allegations do not constitute or state a suit on open account. Under La. R.S. 9:2781(D):

For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services ...

While the present case might encompass an open account under the above definition, the statute clearly contemplates an action for failure to pay a debt incurred. Rather than seeking an amount past due on a debt incurred, Chez Sidney alleges that it, the debtor, was overcharged under its agreement with Acadiana, and that it overpaid. The trial court found the matter was one of contract, and we And no error in such determination. Accordingly, C.C.P. art. 76.1 is applicable:

An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.

| (¡The Supreme Court has interpreted the article to mean that venue is proper in all parishes where the contract is executed. A contract negotiated in two different parishes by mail, phone, and fax have been found to have been “executed” in both venues.

In the present case, the trial court declared that it found no one was being untruthful. This statement is puzzling, since Casey testified that he called Leblanc to offer a price per pound. Le-Blanc testified that he never spoke with Casey on the telephone, and only communicated with him when Casey visited the plant after processing had begun. However, the court also indicated that the price had not been established until after Casey telephoned LeBlanc, which indicates the court did, indeed, believe Casey. It is axiomatic that reasonable evaluations of credibility by the trial court should not be disturbed on review absent documents or objective evidence that contradict the witness’s story, or unless the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. We find no manifest error by the trial court in its acceptance of Casey’s testimony.

LeBlanc agreed and understood that Casey had final say on the terms of the contract, which was, according to the testimony, negotiated partly in Kenner, where Casey telephoned LeBlanc, and partly in St. Martin where Guidry and LeBlanc conferred. In implementing the contract, Guidry met with both LeBlanc in St. Martin and with Casey in Kenner. We find no error in the determination by the trial court that the contract was executed in both parishes. The court correctly denied the exception of venue.

17For the foregoing reasons, the judgment is affirmed. Costs are taxed to Aca-diana.

AFFIRMED.

      . Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981); Sales Tax Collector v. Eckco Fabricators, 423 So.2d 1218 (La.App. 5th Cir.1982).

      . Chehardy, Ellis, Breslin & Murray v. Amerasia Co., Inc., 96-384, (La.App. 5th Cir.11/14/96) 694 So.2d 355.

      . Jordan v. Central Louisiana Electric Co., Inc., 95-1270 (La.6/23/95) 656 So.2d 988; Antin-Quealy, Inc. v. WTA Marine, Inc., 99-0952 (La.6/4/99), 735 So.2d 623

      . Antin-Quealy, Inc. v. WTA Marine, Inc., supra.

      . See Rosell v. ESCO, 549 So.2d at 840, 844-45 (La.1989); Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993).


author: J^JAMES L. CANNELLA, Judge.

text:
    Jose RAMIREZ, Kenneth Francis and Isaac Nevels v. Linda GIROUARD and Allstate Insurance Company.
    No. 02-CA-887.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      James E. Shields, Jr., Gretna, LA, for Appellants.
    Noel Cole Young, New Orleans, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   J^JAMES L. CANNELLA, Judge.

In this automobile accident case, Plaintiffs, Jose Ramirez (Ramirez), Kenneth Francis (Francis) and Isaac Nevels (Nev-els), appeal from a judgment in favor of Defendants, Linda Girouard (Girouard) and Allstate Insurance Company. We affirm.

On October 27, 1997, a vehicle driven by Ramirez and occupied by passengers, Francis and Nevels, exited the raised Westbank Expressway on the Stumpf Boulevard downramp. At the same time, Gir-ouard had entered the ground level lanes of the Expressway after leaving the Subway restaurant nearby. She crossed two lanes of traffic moving toward the far left lane. As she began to straighten her vehicle in the far left lane, Ramirez struck her van on the driver’s side toward the rear.

On October 21, 1998, Plaintiffs filed suit against the Defendants. A bench trial was held on February 20, 2001, following which, the trial judge ruled in favor of the Defendants. The trial judge determined that the accident was caused by Ramirez’ inattentiveness and his failure to yield, despite a yield sign at the bottom of the ramp. The trial judge further found that Girouard’s car was already in the far left lane when Ramirez’s vehicle came down the exit ramp. Consequently, Ramirez should have seen her. Nevels failed to appear at trial | ^without any explanation to the court or his counsel. The trial judge dismissed his case pursuant to a motion by the Defendants.

On appeal, Plaintiffs argue that the trial judge failed to apply La.R.S. 32:124, which states that a vehicle entering a roadway from a private driveway has a duty to wait until all approaching vehicles have passed. Additionally, the trial judge erred in his factual findings. Nevels asserts that the trial judge erred in dismissing his case for failure to appear because it was due to circumstances beyond his control.

La.R.S. 32:124 provides:

The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.

Girouard testified that she had just left a nearby Subway restaurant, which was not directly across from the exit ramp. She knew that the exit ramp at Stumpf Boulevard had a yield sign. Prior to entering the highway, she insured that she could cross the lanes of travel to reach the left far lane safely. Before entering the far left lane, she looked and saw a truck in that lane and also saw the Ramirez car coming down the exit ramp. She waited for the truck to pass then entered the lane, relying on the Ramirez vehicle to yield pursuant to the yield sign. Ramirez did not yield and struck her. Girouard claimed that she was in the far left lane when struck.

Ramirez testified that he was traveling 20-25 miles per hour (mph) and saw the yield sign. However, he stated that he did not see Girouard’s van or any vehicles in the three lanes to the right as he drove down the ramp.

14PhilIip Niddrie witnessed the accident He testified that he did not know where Girouard’s van came from prior to crossing the roadway, but it was straightening out in the far left lane when struck. He stated that Ramirez’s car was traveling 8-9 mph when it was struck by Girouard.

La. R.S. 32:124 does not apply to this case. Before the accident Girouard had already entered the highway and crossed several lanes. However, other traffic safety rules do apply. La.R.S. 32:123 (D) requires a motorist to slow down or stop and yield the right of way to a pedestrian or vehicle in an intersection or another highway. Although this accident did not occur at an intersection,- Girouard’s vehicle was on the “other” highway, whereas the Ramirez car was on an exit ramp. By analogy, Ramirez was obligated to yield to the traffic in the traffic lanes. In addition, a motorist is required to see what is before him and to drive in a careful and prudent manner. La.R.S.32:58. Here, Ramirez admitted that he did not see Girouard’s van or any traffic in the lanes next to the far left, which he was attempting to enter. This supports the trial judge’s finding that he was inattentive.

Girouard also had an obligation to proceed with caution. La.R.S. 32:79 (1) provides that, “(a) vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” In this case, she ascertained that she could move into the lane behind the truck with safety because she relied on the driver of the car on the exit ramp to yield, pursuant to the yield sign. The trial judge believed her version of the events and found Ramirez 100% at fault.

On appellate review, the court’s function is to determine whether the findings of the trier of fact were clearly wrong or manifestly erroneous. Brown v. Seimers, 98-694 (La.App. 5th Cir.1/13/99), 726 So.2d 1018, 1021, writ denied, 99-0430 (La.4/1/99), 742 So.2d 556; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Brown, 726 So.2d at 1021; Rosell, 549 So.2d at 844. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Brown, 726 So.2d at 1021; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Brown, 726 So.2d at 1021; Stobart, 617 So.2d at 882. Only where the documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, may the court of appeal find manifest error, even in a finding purportedly based upon a credibility determination. Brown, 726 So.2d at 1021; Rosell 549 So.2d at 844-45.

Based on the evidence, we find that the trial judge was not clearly wrong in determining that Ramirez was inattentive, failed to yield and was 100% at fault in causing the accident. Furthermore, since the passengers did not file a claim against Ramirez, the trial judge did not err in dismissing their claims.

Nevels asserts that the trial judge erred in dismissing his case against the Defendants because he failed to appear at trial. He contends that he was unable to attend the trial due to circumstances beyond his control. Because we affirm the dismissal of the case, we need not address this issue.

Accordingly, the judgment of the trial court is hereby affirmed. Costs of the appeal are to be paid by Plaintiffs.

AFFIRMED.

      . No suit was filed against Ramirez by Francis or Nevels.


author: | .SUSAN M. CHEHARDY, Judge.

text:
    JEFFERSON DOOR COMPANY, INC. v. FORMAN CONSTRUCTION, INC. a/k/a H. Forman Construction, Inc., James G. Chauvin, and Stefanie Faulkner Gallagher, Wife of/and Daniel J. Gallagher.
    No. 02-CA-941.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Steven K. Faulkner, Jr., Harahan, LA, for Defendants-Appellants, Stefanie F. Gallagher and Daniel J. Gallagher.
    Roy M. Bowes, Mark A. Moeller, Gret-na, LA, for Plaintiff-Appellee, Jefferson Door Company, Inc.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | .SUSAN M. CHEHARDY, Judge.

This is a suit to enforce a material supplier’s lien against the defendants’ property. Defendants have appealed a judgment in favor of the plaintiff. We affirm.

We adopt the statement of facts and conclusion of law from the trial court’s reasons for judgment, which were incorporated into the judgment:

This matter came before the Court ... on the petition of Jefferson Door Company, Inc. against Defendants, Stefanie Faulkner, wife of/and Daniel J. Gallagher to enforce a lien against the residence owned by said Defendants.
The record supports that Defendants hired Forman Construction, Inc. a/k/a H. Forman Construction, Inc. as the general contractor to construct their principal residence in which they now reside at # 12 Colony Road, Gretna, Louisiana. Plaintiff furnished materials to Forman under a credit application with personal guaranty signed by James G. Chauvin. The materials are incorporated into the Gallagher residence and Forman has failed to pay the principal amount due of $61,274.75, plus related charges. Forman and Chauvin filed for protection of Federal bankruptcy laws and thus, the Court granted right to plaintiff to sever its claim against the Defendant Gallaghers.
There is no dispute but that the lien of Jefferson Door against the Gallaghers’ property was properly prepared and timely filed. The Gallaghers claim, | ^however, that the Court should disallow enforcement of the ... lien on the grounds that Plaintiff failed in its duty to insure that the monies which' they, ■Defendants, paid to Forman were applied to the [invoices] billed to Forman for materials furnished [for] their home. Upon the evidence presented, we do not ■find the claim of Defendants to have merit.
Jefferson Door Company was not the insurer of the conduct of Forman. It had no legal obligation, contractual or otherwise, to examine or monitor the activities existing by and between For-man and his customers. If any such duty existed, it was imposed upon the Gallaghers. Thus, Plaintiff is entitled to have its lien recognized and right to proceed against the Gallaghers’ property enforced as prayed.

The court granted judgment in favor of the plaintiff as prayed, including 18% per annum service charges and $10,000.00 in attorney’s fees, plus costs and legal interest from date of judicial demand. Subsequently, by consent of the parties, the trial court granted the defendants’ motion for new trial and entered an amended judgment that eliminated the 18% per annum service charges and reduced the attorney’s fees to $250.00.

The defendants have taken a sus-pensive appeal, with the following assignment of error:

The trial court erred in failing to find the existence and applicability of an equitable defense based on the manner in which Jefferson Door Company, Inc. advanced credit to its customer Forman Construction, Inc., and in failing to notify the property owner of the circumstances, well-known to Jefferson Door Company, Inc., that no payments were being made on the property owner’s job, which was most seriously delinquent, and instead continuing to advance credit on the job relying on its ability to collect from the property owner via the lien statute.

The defendants argue that plaintiff owed an obligation to the defendants “not to recklessly advance credit to Forman when it knew, or should have known, Forman was not creditworthy,” since plaintiff was profiting from Forman | ¿Construction’s referral of the defendants and other persons for whom Forman was building homes. The defendants assert that plaintiffs claim under the Private Works Act, La.R.S. 9:4801, et seq., is “subject to an equitable defense, when the facts of the case clearly show the materialman recklessly advanced credit to its customer, the contractor, to the peril of the property owner.”

Defendants allege that the plaintiff allocated payments from Forman first to accounts on which the plaintiff could not place a hen. They contend that a material supplier’s lien rights against the property owner should not allow the supplier to worsen the debt incurred by continuing to supply material to the contractor after the supplier knows or should know that the contractor is seriously delinquent on the account.

The issue they have raised is whether a material supplier has a duty to the owner of property to which it delivers materials pursuant to an account agreement with the owner’s contractor to see that the owner’s payments to the contractor are properly applied to the correct account. In effect, defendants are arguing that a material supplier has a duty to mitigate damages with respect to the amount protected by the lien.

The defendants argue that existing law establishes a definitive precedent for the imposition of an obligation between the material supplier and the owner, which exists regardless of the material supplier’s relationship with the contractor and the material supplier’s lien rights:

[W]hen the material supplier is sophisticated and possesses, and in fact utilizes, significant internal methods to track the contractor/customer’s account, ignores the creditworthiness of the contractor, ignores the information as to the aging of the contractor’s accounts which is directly and daily available to the material supplier’s personnel, and such actions of the material supplier is to the detriment of the property owner, the material supplier, and not the property owner, should | ¡¡suffer the loss resulting from the contractor/customer’s default. [Appellant’s Brief, p. 31]

To impose such a requirement would thwart the purposes of the Private Works Act. Instead, the law already contains mechanisms by which property owners may protect themselves. First, the property owner may require the contractor to obtain a bond, against which the owner can make claims if for any liens filed arising from the contractor’s default or insolvency. See La.R.S. 9:4802(C), 9:4812. Alternatively, the property owner may purchase a surety bond to protect claimants so that the owner may obtain cancellation of any liens. La.R.S. 9:4835.

An owner, in addition to the contractual liability incurred under contract, has unlimited personal liability under the Louisiana Private Works Act to those with whom he does not have a contractual relationship and who perform work on the property unless the owner has timely filed a notice of contract and had the general contractor timely file a proper bond. Therefore, it is to the owner’s advantage to file a timely notice of contract and to have a proper and timely-filed bond.
The owner’s liability to the hen claimants is not reduced by the amount that he has paid the general contractor, although the general contractor must indemnify the owner for claims that arise. This indemnification claim may be of little solace to the owner if the general contractor has no assets.
Contrast this situation with one where the owner has required a timely-filed notice of contract and a properly-recorded bond from the contractor... .Now the owner can avoid personal liability to the lien claimants with whom the owner does not have contractual privity, and the lien claimants’ rights are restricted to [a set amount] against the surety company plus whatever | ^contractual privity rights they may have against the general contractor.
While owners are benefited by requiring a timely notice of contract and a proper and timely-filed bond, bonded jobs cost more than unbonded ones because general contractors pass the price of the bond on to the owner through the contract amount. [Footnotes omitted.]

Michael R. Rubin, Ruminations on the Louisiana Private Works Act, 58 La.L.Rev. 569, 575-576 (1998).

The Private Works Act creates substantial liabilities for owners. An owner faces personal liability, whether or not there is privity of contract with the lien claimants. An owner also faces loss of its property when lien claimants seize and sell the property pursuant to their privilege to collect what is owed to them.

Id. at 585.

Where there is no performance bond, the owner has recourse against the contractor. The owner’s remedies include the imposition of civil penalties under La.R.S. 9:4855, which grants the owner a. civil cause of action for damages and attorney fees if the contractor failed to comply with the Residential Truth in Construction Act (RTCA). (Presumably, had the contractor complied with the RTCA, the owner would have required the contractor to obtain a performance bond.)

The plaintiff also points out that Stefanie Gallagher testified she and her husband have made a separate settlement with James Chauvin, under which Chauvin agreed to repay them $100,000.00 over the course of five years, in repayment of the monies that were to be paid to plaintiff. Plaintiff notes that if 17defendants are allowed to raise an equitable defense to plaintiffs privilege, they will achieve an inequitable result and avoid paying for materials that are currently components of their home.

We find no merit to defendants’ equitable estoppel arguments. In Fleming Asphalt Co., Inc. v. Red Stick Const. Co., Inc., 556 So.2d 144 (La.App. 5 Cir.1990), an analogous (but mirror-image) argument was made by a material supplier who sued pursuant to the Public Works Act. The supplier asserted that the property owner was at fault in the supplier’s loss by failing to require the general contractor to have the customary statutory bond. This Court rejected that argument, pointing out the cases upon which the supplier relied all predated the present Act.

Here, too, the cases on which the appellants rely for their equity arguments all predate the present version of the Private Works Act. The Private Works Act not only provides a means for material suppliers and others not in privity with property owners to protect themselves when contractors default on payments. It also provides a means for property owners to protect themselves against such claims by suppliers, specifically by requiring the contractor to furnish a bond in connection with the construction contract.

Accordingly, we find no basis on which to reverse the judgment.

Plaintiff filed an answer to the appeal, seeking damages for frivolous appeal in the form of additional attorney fees for defense of the appeal pursuant to La. C.C.P. art. 2164. Plaintiff contends that even if the law recognized constructive knowledge as a trigger to allow an equitable defense, it would not be triggered because there are insufficient circumstances to create constructive knowledge. | sPlaintiff further asserts that defendants have urged us to create new duties between the material supplier and the property owner which are not previously recognized in the law and are not justified under the circumstances of this case.

The appellate court should award damages for a frivolous appeal only when it appears that the appeal was taken for purposes of delay or that counsel for the appellant does not seriously believe the legal positions set forth. Joseph v. Joseph, 506 So.2d 198 (5th Cir.1987); Fouchi v. Fouchi, 442 So.2d 506 (La.App. 5 Cir.1983), writ denied 445 So.2d 1235 (La.1984).

Considering the record, we cannot say the appeal was taken for delay or that counsel for the defendants did not believe the position argued. The mere fact we reject the arguments does not establish that the appeal was frivolous. Further, appeals are favored in the law. Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95), 656 So.2d 700. Accordingly, we deny the claim for damages for a frivolous appeal.

For the foregoing reasons, the judgment is affirmed. Costs of the appeal are assessed against the appellants.

AFFIRMED.

      . "Contractors' surety bonds are of two types, sometimes combined in a single bond: performance bonds, which guarantee the contractor will perform the contract; and labor and material payments bonds, which guarantee that all bills for labor and materials contracted for and used by the contractor will be paid by the surety if the contractor defaults... .The Private Works Act recognizes both performance and payment bonds.... Obligations set forth in a bond given by a compensated surety are strictly construed in favor of protecting the obligee.” Bossier Medical Properties v. Abbott and Williams Const. Co. of Louisiana, Inc., 557 So.2d 1131, 1133 (La.App. 2 Cir.1990).

      . The Residential Truth in Construction Act, La.R.S. 9:4851-4855, requires the contractor to give the owner written notice of lien rights that may be asserted against them and of actions the owners may take to protect themselves against liens.

      . Chauvin was prosecuted by the Jefferson Parish District Attorney on several counts of violation of La.R.S. 14:202, misappropriation of funds by a general contractor, but the charges were dropped after Chauvin reached the settlement with the Gallaghers.

      . Duffy v. Roman, 209 So.2d 502 (La.App. 4 Cir.1968); Baton Rouge Lumber Co. v. Gurney, 173 So.2d 251 (La.App. 1 Cir.1965); Schwartz Supply Co. v. Breen, 184 So. 228 (Orl.App.1938); Carolina Portland Cement Co. v. United States Fidelity & Guaranty Co., 18 La.App. 105, 137 So. 381 (Orl.App.1931); Hortman-Salmen Co., Inc. v. Naquin, 12 La.App. 491, 126 So. 453 (Orl.App.1930).


author: l,SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Tyronne FLETCHER.
    No. 02-KA-707.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Thomas S. Block, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   l,SOL GOTHARD, Judge.

Defendant, Tyronne Fletcher, was convicted of possession of cocaine in violation of LSA-R.S. 40:967 C. Defendant was sentenced, as a second offender, to hard labor for five years without benefit of probation or suspension of sentence. Defendant now appeals from his conviction and sentence.

At approximately 12:57 a.m. on October 18, 2001, Officer Chad Spindel was proceeding westbound near the 100 block of Airline Drive. He was traveling alone in a marked police vehicle and wearing his police uniform. He testified he was familiar with that area and had made numerous drug arrests in that area. Officer Spindel observed a vehicle coming toward him heading east and traveling “well over” 45 miles per hour, the posted speed limit. The vehicle was weaving back and forth from the left lane to the right lane. Intending to make a traffic stop, Officer Spindel turned his vehicle around in order to follow the vehicle that was driving erratically. The other vehicle executed a sharp right-hand turn at a high rate of speed. The vehicle accelerated as Officer Spindel continued to follow it.

The vehicle was forced to stop by a crossing train, and Officer Spindel turned on his overhead emergency lights and his bright lights in order to initiate the 1 «traffic stop. He pulled up very close to the other vehicle to ensure it would not be able to leave. After radioing in the license plate information and his location to the Kenner Police Department headquarters, Officer Spindel exited his vehicle. As he was doing so, he saw the driver’s side door of the other vehicle open.

Defendant started to get out of the vehicle, but Officer Spindel told him not to do that. Defendant placed his hands down by his lap as Officer Spindel walked up to the vehicle. Officer Spindel instructed him to place his hands on the steering wheel to ensure defendant did not have a weapon. Defendant complied with Officer Spindel’s request. Officer Spindel observed the top of an open can of beer covered by a brown paper bag on the floorboard on the driver’s side of the vehicle. Officer Spindel instructed defendant to exit the vehicle. When defendant did so, he said, “This car ain’t a stolen car. I didn’t steal this car.” Defendant’s right hand was by his side and, as he was exiting the vehicle, he placed his left hand in his pants pocket. Officer Spindel told defendant to take his hand out of his pocket and step to the back of the vehicle. He did not comply. Defendant subsequently approached Officer Spindel and pushed on his chest. Officer Spindel took a step toward him, and defendant swung with his right hand, hitting Officer Spindel by his ear.

Officer Spindel struck defendant in the face and advised him he was under arrest. He tried to grab hold of defendant, and they both started struggling. Officer Spindel observed defendant take his left hand and place it to his mouth. It appeared to Officer Spindel that defendant had placed some type of object, perhaps an illegal narcotic, in his mouth. Defendant began to chew on the object, and he attempted to swallow it. Officer Spindel told defendant to spit out whatever he had put in his mouth, but defendant did not comply with that request. Officer Spindel used his pepper spray on defendant. He instructed defendant to place his hands behind his back, but defendant did not do so. Officer Spindel told defendant to tell |4him if he had drugs in his mouth, so he could call an ambulance for his safety. Defendant swallowed the object in his mouth and told Officer Spindel it was a stick of gum.

Sergeant Richard Mottley arrived on the scene. Defendant was arrested and placed into the back of the police car. Sergeant Mottley and Officer Spindel subsequently searched the defendant’s vehicle for registration papers and discovered that the vehicle was registered to an individual who resided in Mississippi. They made attempts to contact the owner of the vehicle, but were unsuccessful. Therefore, Officer Spindel and Sergeant Mottley decided to have the vehicle towed for safekeeping, as per the Kenner Police Department policy, until the owner of the vehicle could reclaim it. Prior to the towing of the vehicle, Officer Spindel and Sergeant Mottley decided to conduct an inventory search of the vehicle. Sergeant Mottley subsequently gave Officer Spindel some off-white, rock-like objects he had found on the driver’s seat and on the driver’s side floorboard.

Chris Mitchell, the narcotics detective, arrived on the scene and field tested the off-white objects, which tested positive for the presence of cocaine.

Thomas Angelica testified that he was employed by the Jefferson Parish Sheriffs Office crime lab as a forensic scientist specializing in drug chemistry. Mr. Angelica was qualified as an expert in the field of testing and identification of controlled dangerous substances. He testified that tests conducted on the off-white, rock-like substances seized from defendant were positive for cocaine.

Defense counsel did not call any witnesses.

In this appeal, defendant argues the trial court erred in not finding that the seizure of drugs in this case was illegal because the police stop of defendant was merely a pretext to conduct a search of his vehicle. He claims that the only reason Officer Spindel conducted the stop was to legitimize his presumption that | ^defendant was involved with drugs. Defendant contends that the trial court thus erred in admitting the evidence seized from the vehicle, because the seizure resulted from an illegal search of the vehicle.

Although defendant filed a pre-trial motion to suppress evidence, the record reflects that defendant proceeded to trial without obtaining a ruling on the motion. A defendant waives all pending motions by permitting trial to proceed without raising the issue that his pretrial motions were neither heard nor ruled upon. State v. Alexander, 97-1199, p. 6 (La.App. 5 Cir. 9/29/98), 720 So.2d 82, 86, writ denied, 98-3109 (La.4/9/99), 740 So.2d 628 (citing State v. Price, 96-680, p. 8 (La.App. 5 Cir. 2/25/97), 690 So.2d 191, 196). Therefore, there is no ruling for this Court to review.

The record also reflects that the defendant failed to object to the introduction of the evidence in question at trial. Again, there is no ruling for this Court to review since defendant failed to properly preserve the issue for review by contemporaneous objection. LSA-C.Cr.P. art. 841.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.