author: | .WALTER J. ROTHSCHILD, Judge. h DALEY, J.,

text:
    Dino DISTEFANO v. B & P CONSTRUCTION, INC.
    No. 04-CA-25.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Rehearing Denied June 15, 2004.

      Christopher R. Schwartz, Metairie, LA, for Plaintiff/Appellant.
    Deanne B. McCauley, John J. Rabalais, Janice B. Unland, Robert T. Lorio, Cov-ington, LA, for Defendani/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | .WALTER J. ROTHSCHILD, Judge.

The claimant, Dino Distefano, appeals the judgment of the trial court that found he forfeited workers’ compensation benefits for violating LSA-R.S. 23:1208. For the reasons stated herein, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

Dino Distefano filed a Disputed Claim for Compensation on December 3, 2001, for injuries that he suffered on September 19, 2001 when' he was struck in his left thigh by a large piece of a steel beam while in the course and scope of his employment with the defendant, B & P Construction, Inc. (“B & P”). On July 1, 2002, after Distefano’s deposition and video surveillance had been taken, B & P filed a Reconventional Demand, alleging that Distefano violated LSA-R.S. 23:1208 by willfully making false statements in his deposition of March 5, 2002 regarding the extent of his disabilities and physical restrictions.

In its Reconventional Demand, B & P alleged that Distefano specifically stated in his deposition that he was essentially restricted to staying on the sofa with pan ice pack and his leg elevated, he was incapable of walking inside or outside his home without a walker, and that he was unable to squat, kneel, or bend his left leg. B & P engaged a private investigator who videotaped Distefano on several dates both before and after the deposition. Based upon the surveillance videos, B & P determined that Distefano misrepresented the severity of his condition and misrepresented the activities of which he was capable. Although B & P had begun paying worker’s compensation benefits after the accident, based upon Distefano’s deposition and the video surveillance, B & P terminated his benefits as of August 2002.

Trial was held on July 14, 2003. The only witnesses to testify at trial were Mr. Distefano and Mr. Musgrove, the private investigator who conducted the video surveillance. Many exhibits were admitted, including Distefano’s medical records, several depositions, photographs of Distefano’s leg, and surveillance videotapes.

On October 27, 2003, the trial court issued a judgment in favor of B & P Construction, Inc., finding that Distefano was not a credible witness and that he had willfully made false statements in an attempt to receive workers’ compensation benefits in violation of LSA-R.S. 23:1208. The trial judge dismissed Mr. Distefano’s claim with prejudice and cast him with all costs. Further, the judgment referred the matter to the Fraud Division of the Louisiana Office of Workers’ Compensation Administration. It is from this judgment that Distefano appeals.

DISCUSSION

Before we discuss Distefano’s assignments of error, we must consider a motion filed by B & P after Distefano’s appeal was lodged. The defendant, B & P Construction, Inc., filed a Motion to Dismiss Appeal and/or Alternative Motion to Strike Evidence and Argument of Appellant. "This motion was based on Distefano’s inclusion in his appellate brief of documents and facts outside of the trial court record, specifically relating to medical treatment he allegedly received 1¿after the trial of this matter, and also the ruling from the Fraud Division’s investigation of this matter. A panel of this court denied the Motion to Dismiss and referred the Alternative Motion to Strike to the panel assigned to hear the merits of the case.

B & P argues that any medical treatment Distefano received after the trial is not relevant to the primary issue at trial, which was whether he made false statements in his March 5, 2002 deposition in violation of LSA-R.S. 23:1208. Further, B & P argues that correspondence from the Fraud Division should not have been attached to Distefano’s appeal, because it is this Court’s duty to review only the testimony and evidence presented at trial, and any documents or correspondence - prepared after trial is irrelevant. Distefano responds that the decision of the Fraud Division should be included in the record for completeness, as should the information about his subsequent medical treatment.

Attaching documents not admitted into evidence at trial to an appellate brief does not supplement the record. The proper procedure to seek supplementation of the record is to file a Motion to Supplement the Record, which was not done in this case. Moreover, there is no evidence regarding Mr. Distefano’s medical treatment subsequent to trial, but only counsel’s statements in brief, which are not evidence. This information is not relevant to the instant dispute. Furthermore, allowing any medical information into the record at this point would prejudice B & P, because it was not given the opportunity to question any doctors or determine any facts surrounding Distefano’s post-trial medical treatment.

LSA-C.C.P. art. 2164 provides that an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments, and other rulings, unless otherwise designated. LSA-C.C.P. arts. 2127 and 2128; Board of Directors of Industrial Development Bd. of City of New Orleans v. Taxpayers, Property Owners, Citizens of City of New Orleans, 03-0827 (La.App. 4 Cir. 5/29/03), 848 So.2d 733, 737, writ denied, 03-1528 and 03-1843 (La.10/1/03), 855 So.2d 288, 289; Augustus v. St. Mary Parish School Board, 95-2498 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1156. The appellate briefs of parties and attachments thereto are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to therein if those facts are not in the record. Reed v. Peoples State Bank of Many, 36,531 (La.App. 2 Cir. 3/5/03), 839 So.2d 955, 958. Examination of exhibits attached to an appellate brief, but not offered into evidence, is beyond the scope of our review. United General Title Insurance Co. v. Casey Title, Ltd., 01-600 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065.

Considering the jurisprudence on this issue, we find that Distefano’s references to his post-trial medical treatment and the attachment of correspondence from the Fraud Division were improper and may not be considered by this Court on appeal. Accordingly, we grant B & P’s Motion to Strike Evidence and Argument.

We now address the merits of Distefano’s appeal, in which he has assigned the following errors:

1. The hearing officer committed manifest error or was clearly wrong in holding that Dino Distefano did not suffer the injuries that he testified he suffered.
2. The hearing officer committed legal error or was clearly wrong in applying LSA-R.S. 23:1208 in the present matter, in ordering Dino Distefano to pay all cost [sic] of the proceedings, and in dismissing this matter with prejudice.
3. Dino Distefano is entitled to attorney fees and penalties because his employer unreasonably denied him workers’ compensation benefits, and Dino Distefano is entitled to future workers’ compensation benefits.
4. The hearing officer committed legal error or was clearly wrong in failing to allow the report of the employer’s medical expert, Dr. Ira Markowitz, into evidence because the employer refused to pay Dr. | (¡Markowitz to review the video tapes entered by the employer to allege fraud on behalf of Dino Distefano.

The first two assignments of error are related and concern the applicability of LSA R.S. 23:1208, which states in pertinent part:

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.

LSA-R.S. 23:1208, which provides for the forfeiture of worker’s compensation benefits, is penal in nature and must be strictly construed. Frazier v. Dollar General, 37,298 (La.App. 2 Cir. 8/22/03), 852 So.2d 1263, 1273. 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. Lee v. Alton Ochsner Medical Foundation, 01-650 (La.App. 5 Cir. 10/17/01), 798 So.2d 1225, 1229, unit denied, 01-3094 (La.2/1/02), 807 So.2d 853, reconsideration denied, 01-3094 (La.3/22/02), 811 So.2d 935. Once these requirements are met, the statutory forfeiture provisions apply and must be enforced. Meyer v. Carr Stone & Tile Co., 01-1422 (La.App. 4 Cir. 3/13/02), 813 So.2d 529, 531.

LSA-R.S. 23:1208 is a broadly worded statute encompassing any false statements or misrepresentations made to anyone, including the employer, physicians or insurers, when made willfully or deliberately for the purpose of obtaining benefits, and this statute contains no requirement that an employee be put on notice of the consequences of making such false statements or misrepresentations. J.E. Merit Constructors, Inc. v. Butler, 97-361 (La.App. 5 Cir. 9/30/97), 700 So.2d 1111, 1113; Hull v. Fluker Farms, 00-0757 (La.App. 1 Cir. 5/11/01), 787 So.2d 535, 539, writ denied, 01-2291 (La.11/16/01), 802 So.2d 612.

The determination of whether or not a worker’s compensation claimant has forfeited his right to benefits by making a false statement or representation for the purpose of obtaining benefits involves inherently factual determinations and, thus appellate review of the worker’s compensation judge’s findings is governed by the manifest error standard. Rowan Companies, Inc. v. Powell, 02-1894 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable. Salard v. Diamond M Tile & Marble, Inc., 01-373 (La.App. 3 Cir. 12/12/01), 801 So.2d 1230, 1233, writ denied, 02-450 (La.4/19/02), 813 So.2d 1091.

In these two assignments of error, Distefano argues that he did not make willful misrepresentations in order to obtain any benefit. He asserts that the defendant is trying to punish him for being ambulant with a cane rather than a walker, and that none of the surveillance tapes show him engaged in activities that contradict the statements he made in his deposition regarding his physical capabilities. Distefano argues that if the video shows him using a cane instead of a walker, it was his attempt to exercise his left leg as much as possible, which was the point of his physical therapy. He contends that the videos only show him taking care of normal errands with the use of a cane, which does not contradict his deposition testimony. We disagree.

In support of its position that Distefano made false representations in order to receive benefits, B & P points to specific statements Distefano made in his March 5, 2002 deposition. We note that this deposition occurred approximately five and a half months after Distefano’s injury. Distefano stated that the extent of his | ¡¡physical activity around the house was staying on the sofa with his leg elevated with an ice pack to reduce the swelling. He claimed that he was basically restricted to the house, and the most he did was go to the carport to smoke and then “pop right back in the house.” He stated that he had to use the walker to go outside of his house to the carport to smoke. He indicated that he used the walker inside his home also, and that he had to use the walker everywhere he went. Distefano also stated in his deposition that he was unable to bend to the left side or bend his left leg.

B & P conducted video surveillance of Distefano on February 6, 7, and 11, 2002, and on June 28 and July 2, 2002. This video surveillance clearly contradicts Distefano’s deposition testimony as to his functional level and physical capabilities, as it shows that Distefano did not use the walker everywhere he went, he could bend his left leg, he was not restricted to the inside of his house, and he could walk easily with the use of a cane rather than a walker.

The first video surveillance tape, taken on February 6, 2002, shows Distefano walking outside at a normal pace with the assistance of a cane, not a walker, and then getting into the driver’s seat of his Ford Explorer and driving away. Video surveillance taken the next day, February 7, 2002, shows Distefano getting into the driver’s seat of his vehicle with apparent ease and then driving with his guest passenger and common-law wife, Jonell Pay-see, to his doctor’s office. Although he walked from his home to his vehicle without a walker or any apparent difficulty, when he arrived at the doctor’s office, he used the walker and slowly walked inside.

On February 11, 2002, video surveillance shows Distefano arriving at his home, exiting his vehicle, and then carrying a grocery bag across the street without using his walker. Then, he walked back to his home with the use of his cane and without apparent difficulty. Shortly thereafter, he is observed walking to his 1¡¡vehicle with a cane, while carrying his walker, and then loading the walker into the backseat. He then got into the front passenger’s seat and Ms. Paysee drove them awáy. A short time later, he arrived at his doctor’s office, where he used the walker and approached the building in a very slow manner. There was only 15-20 minutes between the time he easily walked to his vehicle at home while carrying his walker until he arrived at the doctor’s clinic and used the walker to move very slowly into the building. When he left the doctor’s office, he once again moved slowly to his vehicle using the walker. Although he carried the walker and loaded it into the vehicle at his house, Ms. Paysee loaded the walker into the vehicle at the doctor’s office. Less than 30 minutes later, Distefano was observed driving to Tu’s Tire and he used his cane without difficulty when he arrived. While at Tu’s Tire, he walked around the vehicle and watched while his vehicle was being repaired. He also bent his left leg without any apparent difficulty and squatted while examining and pulling on his right rear axle. Then, he arose from this squatting position without using a cane, walker, or any other assistance.

Video surveillance taken on June 28, 2002, shows Distefano again walking outside and around his vehicle without the use of a walker, and also bending over and shaking ice into an ice chest. However, on July 2, 2002, when he arrived at his doctor’s office, he again used a walker and walked very slowly into the building.. During all of the video surveillance, on the occasions when Distefano used the cane, he appears to walk easier and faster than when he used the walker. However, during trial, he stated that it was easier to walk with a walker than a cane.

James Musgrove, a private investigator, testified at trial that that he conducted the video surveillance of Distefano. He authenticated the videotapes admitted at trial and also testified about Distefano’s activities that he observed and videotaped.

|10At trial, Distefano admitted that he is the person shown on the videotapes. He stated that he uses a walker and sometimes a wheelchair to get around. He indicated that could not walk a distance of one block down the street. He further testified that he cannot bend his left leg. He stated that he testified as he did in his deposition because he was taking medication and got confused. However, he did not present any evidence to support his testimony that he was on medication and he did not mention medication in his affidavit in opposition to B & P’s Motion for Summary Judgment. Rather, in his affidavit, he stated that he did not make any willful misrepresentations in order to obtain benefits but had experienced “momentary forgetfulness” during his deposition. In his appeal brief, Distefano suggested another reason for his activities on the videos. He stated that his doctors recommended that he exercise the leg as much as he could, and the activity on the videotapes could have been an effort to do that.

In her deposition, Jonell Paysee testified that she had not seen Distefano doing anything strenuous since the accident and that he was even unable to unload groceries from the car. However, she admitted that she had not viewed the video surveillance and did not accompany Distefano to Tu’s Tire where he bent his left leg and squatted by his vehicle. She also testified about an incident when she was pushing Distefano in a wheelchair and came up too fast on a curb, throwing him at least 10-15 feet.

In his deposition, Distefano' stated that at the time of his accident, he had worked for B & P Construction for approximately 10-11 years as a manual laborer. The accident happened while working alongside his supervisor, who took him to the hospital after the accident. His wound was initially treated at the emergency room and he was released, but swelling and infection occurred within the next day, whereupon he returned to the hospital and was admitted for approximately two weeks. He stated that he participated in some physical therapy but had to stop, lubecause one of his doctors indicated that hewas getting a blood clot. However, two tests for deep vein thrombosis, performed in October of 2001 and March of 2002, were negative. Distefano stated that his main treating physician at the time of the deposition was Dr. Kenneth Williams, who had told him he was unable to return to work at that time and prescribed the walker for him. At trial, Distefano stated that his leg was bruised and had leakage. However, photos taken one week prior to trial do not reveal much bruising or any leakage.

The parties do not dispute that Distefano suffered an injury to his left leg during this accident, and his medical records document that he suffered an injury, which caused him decreased circulation, swelling, and numbness in his left leg. However, based on the video surveillance, B & P argues that Distefano’s injuries were not as restrictive and debilitating as he has claimed.

It is clear and evident that Distefano did indeed make false representations about his physical abilities during his deposition. He claimed in his deposition that he had to use his walker to go everywhere and that he could not bend his left leg. However, the video surveillance indicates that he did not accurately state his condition during the deposition, because the videos show him walking at a normal pace without the use of a walker on several occasions and even bending and squatting and then standing up without any assistance. We further note that Distefano’s movements outside his home appear to be done with ease without a walker and at a normal pace, whereas his movements outside the doctor’s office were slower and with the assistance of a walker.

Once it has been determined that a false statement or representation has been made, the trial judge must make a factual determination as to whether, based on the record, the statement or representation was willfully made in order to obtain benefits. Issa v. LL&G Construction, Inc., 02-1215 (La.App. 1 Cir. 3/28/03), 844 So.2d 912, 917, writ denied, 03-1875 (La.10/31/03), 857 So.2d 480. In the | ^.present case, the trial court considered the evidence and made the factual determination that Distefano was not credible and had indeed made willfully false representations in order to obtain benefits. In light of the evidence, this finding was reasonable.

Although the medical records indicate that Distefano did suffer an injury to his left leg as a result of the accident, the videotapes show that he did not accurately testify regarding the severity of his condition and physical abilities. It is difficult for this Court to assess the true condition of a claimant when he has been dishonest and has falsely represented his physical limitations. LSA-R.S. 23:1208, which requires a worker to forfeit workers’ compensation benefits for willfully making a false statement or misrepresentation to obtain benefits, is rationally related to the state’s objective of promoting honest representations and full disclosure by workers’ compensation claimants. Bolton v. Mike Fleming Const., 36,521 (La.App. 2 Cir. 12/11/02), 833 So.2d 1177, 1184. The evidence supports the trial court’s finding that Distefano did not make honest representations or fully disclose his physical abilities. Such conduct by the claimant is disfavored and should not be condoned by this Court.

An appellate court is duty bound to affirm a determination that a claimant has forfeited his entitlement to worker’s compensation benefits on the basis, of fraudulent misrepresentation, where an ev-identiary basis exists to support such a conclusion. Dukes v. Sherwood Acres Apartments, 01-2325 (La.App. 1 Cir. 11/8/02), 835 So.2d 742, 747. The record before us shows that there is in fact an evidentiary basis for the trial court’s finding that Distefano made false representations in order to obtain benefits, and this Court must affirm the factfinder’s conclusion when it is reasonable.

Considering the testimony and evidence, we find the trial judge’s conclusion that Distefano’s statements at his deposition were willfully false for the purposes |13of forfeiture under R.S. 23:1208 was not manifestly erroneous. Accordingly, we affirm the trial court’s judgment dismissing Distefano’s disputed claim for compensation with prejudice and casting him with all costs of the proceedings.

In his third assignment of error, Distefano argues that he is entitled to statutory penalties and attorneys fees, because B & P was arbitrary and capricious in discontinuing his benefits.

At the time that B & P discontinued benefits to Distefano, this matter was governed by LSA-R.S. 23:1201.2, which stated:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to payment of all reasonable attorney fees for the prosecution and collection of such claims.

“Arbitrary and capricious behavior,” within the meaning of the worker’s compensation statute providing for the imposition of attorney fees, consists of willful and unreasoning action, without consideration and regard for the facts and circumstances presented, or of seemingly unfounded motivation. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 45-46. At the time that Distefano’s benefits were terminated, LSA-R.S. 23:1201.2 provided for an award of attorney fees, but not penalties, for arbitrary or capricious discontinuation of benefits.

Considering the totality of the facts in this case and in view of our finding that the trial judge was not manifestly erroneous when he found that Distefano forfeited his right to worker’s compensation benefits, we find that B & P was not arbitrary, capricious, or without probable cause, when it terminated Distefano’s benefits. Accordingly, Distefano is not entitled to recover attorney fees or penalties, and this assignment of error is without merit.

|uIn his fourth and final assignment of error, Distefano argues that the trial court erred in disallowing the admission of a report by Dr. Ira Markowitz, the defendant’s IME doctor. The trial judge found that Dr. Markowitz’s medical report was inadmissible, because it was unreliable and unauthenticated hearsay.

The report, approximately a page and a half in length, is not on letterhead and is not signed, and the author is simply identified as “I.M.” We agree with B & P that the report was not properly authenticated. Moreover, although Distefano contends that Naquin reviewed Dr. Markowitz’s reports before deciding to terminate his benefits, according to Naquin’s deposition, he did not review any other records from Dr. Markowitz, who refused to furnish B & P with records of the examination or to view the video surveillance tapes until certain fees were paid. It is also clear from Na-quin’s deposition that he did not consider medical records in making his recommendation to terminate benefits, but only Distefano’s deposition and the video tapes, which he stated in his deposition that he did view. Considering the testimony, evidence, and arguments of counsel, we .find no error in the.trial court’s ruling not to allow admission of this exhibit.

DECREE

Accordingly, for the reasons assigned above, we affirm the judgment of the trial court. We also grant B & P’s Motion to Strike Evidence and Argument.

AFFIRMED.

DALEY, J., dissents with reasons.

h DALEY, J.,

Dissenting with reasons.

I respectfully dissent from the majority’s opinion. I believe the facts in the record, when considered as a whole, shows Dino Distefano’s statements were not willfully falsely made with the intention of fraudulently receiving benefits. I find the trial judge’s conclusion that Distefano’s statements at his deposition were willfully false for the purposes of forfeiture under R.S. 23:1208 to be manifestly erroneous. While it appears his statements may have overstated his physical disabilities, the variance between Distefano’s testimony as to the things that he could do and those activities shown on the videotapes is not the type of fraud envisioned by LSA-.R.S. 23:1208. See Palmer v. Schooner Petroleum Services, 02-397 (La.App. 3 Cir. 12/27/02), 834 So.2d 642

R.S. 23:1208 does not require that the trier of fact look at the allegedly false statements in a vacuum. The insurance adjustor, Joseph Naquin, who made the decision to terminate Distefano’s benefits, admitted in his deposition that he considered only the deposition and the videotapes, and no other factors or records. When I look at the entire record, and consider all the facts, especially the medical records that document Distefano’s objective injuries, the fact that Distefano was under active medical care at all times and had not been released to return to work, I conclude that Distefano’s statements in deposition did not rise to a violation of R.S. 23:1208. I would reverse and remand to the Office of Workers’ Compensation reinstatement of benefits.

|2B & P conducted video surveillance on Distefano on February 6 and 7, 2002, and on June 28 and July 7, 2002. B & P argues that the videos show him walking “briskly” with a cane instead of a walker, and that one video shows him bending his left leg as he examines the tire of his car. The video surveillance tape shows Distefano walking with a cane across his street carrying a small plastic grocery bag, ostensibly to his parents’ home. Another video shows him bending his left leg to examine the tire of his car while at a tire shop. Another video shows him using the walker while going to and from his doctor’s office. Video also shows Distefano, on these same dates, driving a Ford Explorer. On the occasions when Distefano used the cane, he appears to walk somewhat easier and faster than when he used the walker, though he is never without a limp.

It is clear that Distefano exhibited disability in his leg on every video. He never walked unaided, though he' did use a cane instead of a walker in certain instances. He walked with a limp in every video. He was never shown engaged in any strenuous physical activity. Though it is true he stated in deposition that he could not bend his left leg, the video shows him bending his left leg on one occasion for a short period of time. It does not show him engaged in repeated bending, and Distefano walked with a cane in that particular video sequence. Distefano said that his doctors recommended that he exercise the leg as much as he could, and that this activity was merely an effort to do that.

At his deposition, Distefano stated that he was 39 at the time of his accident. He had not completed the 10th grade in high school, and had worked a series of manual labor jobs since leaving high school. He lived in a house his parents owned across the street from his parents with his girlfriend and their two children. At the time of his accident, he had worked for B & P Construction for approximately 10-11 years as a manual laborer. He operated a bobcat and pile driver, and performed whatever other manual labor was necessary. His accident | ^happened while working alongside his supervisor, who was also the one who took him to the hospital. His wound was initially treated at the emergency room and he was released, but swelling and infection occurred within the next day, whereupon Distefano returned to the hospital and was admitted for approximately two weeks while the wound was treated surgically and drained. He stated that he participated in some physical therapy but had to stop when it made the swelling in his leg worse.

Distefano stated that he had never been involved in any previous workers’ compensation claim or lawsuit, nor had he ever filed any lawsuit for personal injury. He denied any previous medical history with his left leg, no motor vehicle accidents, and no slip and falls. No medical records contradict these assertions.

At the time of his deposition, when the allegedly fraudulent statements were made, Distefano was only approximately six months post-injury and remained under the active care of several doctors. His medical records document that he suffered from a serious condition, vascular insufficiency in his left leg caused by the accident, which caused him decreased circulation, chronic swelling, and pain and numbness in his left leg. An MRI taken a few months after the injury suggested that scar tissue affected the saphenous vein, causing the swelling and vascular insufficiency. Distefano stated that his main treating physician at the time of the deposition was Dr. Kenneth Williams, who had told him he was unable to return to work at that time. Dr. Williams prescribed the walker for Distefano and also provided the medical documentation for him to secure a handicapped license plate for his car.

In the same deposition, Distefano said that whereas he didn’t think he could return to the same type of work that he had performed for B & P, he thought he could return to work if it didn’t involve standing on his left leg. Distefano was under the impression that he had suffered from blood clots in his leg, but two tests Rfor deep vein thrombosis, performed in October of 2001 and March of 2002, were negative. At the time of the deposition, it does not appear that any doctor had as yet stated that Distefano had reached maximum medical improvement, nor had any doctor released him to return to work, nor had they offered opinions on his future capabilities.

Several medical records dated after the termination of benefits, but before trial, suggest that Distefano had been told that above the knee amputation was the only other surgical intervention that doctors could offer. Some records indicate that he was requesting amputation. It is unclear whether this recommendation was for alleviation of the pain or swelling. The record does not reflect that Distefano had been offered any rehabilitation services nor undergone a functional capacity examination to determine the extent of his disability. Other medical records dated after the termination of benefits, but prior to trial, show that Distefano continued to seek treatment for pain, tenderness, and periodic swelling of his leg.

Considering all the evidence as noted above, I conclude that the trial judge was manifestly erroneous in finding that Distefano’s deposition testimony rose to the level of fraud contemplated by R.S. 23:1208.


source: Caselaw Access Project

author: I,GASKINS, J. h CARAWAY, J.,

license: Public Domain

text:
    Robert H. ROBINSON, Plaintiff-Appellee v. APRIA HEALTHCARE, INC., Defendant-Appellant.
    No. 38,438-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 27, 2004.

      Chopin, Wagar, Cole, Richard, Reboul & Kutcher, L.L.P., by Elizabeth Smyth Sir-go, Anne Nyanda, Mayer, Smith & Roberts, by Caldwell Roberts, Metairie, for Appellant.
    Lance P. Havener, Shreveport, for Ap-pellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   I,GASKINS, J.

The defendant, Apria Healthcare, Inc. (Apria), appeals from a trial court judgment awarding the plaintiff, Robert H. Robinson, wages, statutory penalties, and attorney fees. For the following reasons, we reverse in part, amend in part, and affirm in part the trial court judgment.

FACTS

The plaintiff began working as a medical technician for a predecessor of Apria in 1986. The local branch of the company furnishes in-home medical equipment and respiratory therapy services to patients in the northern half of Louisiana. Apria acquired the company in the mid-1990s.

Due to the nature of the business, employees were frequently required to be “on call” to furnish and repair equipment or to render respiratory therapy. After hours, a patient service technician (PST) and a respiratory therapist (RT) were always “on call.” Apria had an answering service take calls from patients which were then relayed to the appropriate party. If the PST or RT did not respond to the call within 15 minutes, a supervisor would be called. PSTs and RTs were hourly employees who were compensated for being “on call” after hours.

In 1997, the plaintiff was promoted to a management position, first as a distribution supervisor and later as a logistics supervisor. These jobs were supervisory, salaried positions, generally not eligible for “on call” compensation. In February 1999, Karen Daniel was named the branch manager. After numerous disputes with Ms. Daniel during the next three years, the plaintiff eventually resigned. The date of his resignation was July 23, 2002.

^Several months after he left the company, someone anonymously sent the plaintiff information regarding an employee “on call” memo sent out to its branches by Apria on February 9, 1999. According to the plaintiff, the memo provided that, even though he was a salaried supervisor, he was entitled to compensation for being the primary “on call” employee or the back-up “on call” employee. The plaintiff contended that he was never informed of the policy and was never paid for being “on call,” even though he claimed that, in his supervisory position, he was the primary “on call” person or the back-up “on call” person for approximately four years.

On May 13, 2003, the plaintiff filed suit against Apria, arguing that the company refused his amicable demand for payment of the “on call” pay. He sought to recover unpaid wages as well as penalties and attorney fees pursuant to La. R.S. 23:631 and La. R.S. 23:632.

A hearing on this matter , was held on July 9, 2003. On July 18, 2003, the trial court filed its findings of fact and conclusions of law. The court stated that the issue was whether the plaintiff was “on call” on a regular basis under Apria’s policy and the terms of the plaintiffs employment. The court found that Apria’s “on call” policy included payment for logistics supervisors such as the plaintiff. According to the court, the plaintiff was entitled to “on call” pay for the time he was expected to respond to his pager/cell phone/home phone to cover the demands of Apria.

The court found that since the effective date of the memo revising Apria’s policy for “on call” payment, the plaintiff had been the back-up “on call” employee for 196 weeks and the- primary “on call” employee for 16 1 ¡¡weeks. He was awarded $18,130 for back-up “on call” pay and $2,960 for primary “on call” pay. The court noted that proper demand was made upon Apria which refused to pay the amounts due. Therefore, the court awarded 90 days of penalty wages and attorney fees of $10,000. A judgment to this effect was signed by the trial court on August 7, 2003. Apria appealed suspensively.

BURDEN OF PROOF

According to Apria, under the Fair Labor Standards Act, employees are divided into nonexempt hourly employees and exempt salaried employees such as the plaintiff. Under Apria’s policy, only certain exempt employees are entitled to lump sum payments for “on call” services. Apria urges that the plaintiff failed to show that he met the requirements for receiving “on call” pay.

The plaintiff sought to recover past due pay from Apria under La. R.S. 23:631, which provides in pertinent part:

A. (l)(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or |4other offi-dal documentation from the United States Postal Service.
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the. right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592.

The plaintiffs entitlement to “on call” pay depends upon the terms and conditions of Apria’s policy as applied to the evidence presented at trial. When the plaintiff received various policies and procedures manuals from Apria, he signed statements acknowledging that he was an “at will” employee. The plaintiff was promoted to his position as a logistics supervisor in 1997. At that point, he was no longer paid an hourly rate, but was given an annual salary. Therefore, he was an exempt employee. Under the company policy in place at that point, the only time exempt employees would be paid for “on call” services was when they took clinical calls.

On February 9, 1999, Frank Bianchi, the Senior Vice President for Human Resources at Apria’s corporate office in California, sent out a memo to all Apria branches. The memo outlined changes to the “on call” policy effective March 8,1999. The purpose of the change in policy was to establish a uniform compensation plan for any employee who is “on call.” Highlights of the policy included the specification that most exempt positions were not eligible for “on call” pay. Only those exempt positions I Kthat are “on call” on a regular basis were eligible for “on call” pay. Those positions were listed on a chart attached to the memo. The chart specifies that a logistics supervisor, such as the plaintiff, is eligible for lump sum “on call” pay or back-up “on call” pay for relief purposes only.

This memo was followed by a revised Human Resources Policies and Procedures Manual with a date of August 1, 2002. The new manual incorporated many of the provisions of the 1999 memo. It also specified that “back-up” shall mean subject to secondary, not primary call. Employees entitled to compensation for back-up “on call” duty were to be paid 50 percent of their daily rate of pay.

Based upon Apria’s policy, even though the plaintiff was a salaried supervisor, he would be entitled to “on call” or back-up “on call” pay under certain circumstances. The plaintiff introduced into evidence the instructions given to Apria’s answering service specifying that if a PST failed to respond to a page within 15 minutes, the service was to page supervisors. The plaintiff was first in the call order, followed by Ms. Daniel and several other supervisors.

Cathy Klein, the director of employee relations and risk management at Apria’s corporate headquarters in California, acknowledged that company policy allowed “on call” pay for exempt supervisors under specific circumstances. Logistics supervisors such as the plaintiff are entitled to “on |(jCaH” pay for relief purposes only where there is a sporadic shortage of help. Ms. Klein testified that a supervisor would only be entitled to “on call” pay if no one else was available to respond to an emergency and the supervisor went out on the call. In such a situation, he would only be entitled to lump sum “on call” pay and not hourly “call back” pay. She testified that normally the back-up “on call” person would not be a supervisor. Ms. Klein contended that receiving calls at home after hours was part of the job covered by the salary paid to supervisory personnel.

In support of his claim for unpaid wages, the plaintiff testified on his own behalf. The plaintiff stated that he first became aware of the “on call” policy to pay supervisors in an anonymous fax that arrived in January or February 2003, several months after he left employment with Apria. According to the plaintiff, he was the back-up “on call” person for 196 weeks and the primary “on call” person for 17 weeks. He stated that if the primary “on call” person could not be reached, the answering service was instructed to call him. The service would call his house and then would page him if it got no answer. The plaintiff said that he went on numerous calls after he became a supervisor. The plaintiff testified that sometimes on weekends, there were too many calls for the PSTs and RTs to handle. Therefore, he was required to help. He claimed that Ms. Daniel made it clear that no calls were to get around him. He stated that on only one occasion, another supervisory employee, Tina Gamble, had to handle a call after hours and that she was paid for it.

|7On several occasions, he asked Ms. Daniel about receiving pay for being “on call” and was told that he did not qualify because he was a supervisor. He claimed that he inquired about filling out route sheets but was told that, as a supervisor, he was not entitled to be paid for his work after hours. He then requested that Tina Gamble might also serve as back-up “on call” on occasion. He was told that this was not part of Ms. Gamble’s job.

In support of his claims, the plaintiff also offered the testimony of several coworkers. Adrian D. Fletcher was a nonexempt employee that worked as a PST for Apria for about seven years and was supervised by the plaintiff. He asserted that Ms. Daniel called a meeting of all PSTs who take calls. She said that if they failed to respond to a call within 15 minutes, the answering service would page the plaintiff. Ms. Daniel instructed the group that the plaintiff was to be the back-up “on call” person. Mr. Fletcher testified that when he could not answer a call timely, the plaintiff answered the call. On only one occasion did someone else answer a call when Mr. Fletcher could not respond.

Salvator Patricola worked as a PST for Apria and was supervised by the plaintiff. He testified that the plaintiff was the primary back-up “on call” person. Although hé did not recall any instances in which the plaintiff actually made a delivery for him, he stated that he frequently called the plaintiff after hours with work-related questions.

Melissa White testified that she was employed as a RT with Apria until January 2003. Ms. White said that Ms. Daniel referred to the plaintiff |sas the primary back-up “on call” person. Ms. White was instructed to contact the plaintiff if she was called out after hours and needed help. She said that she frequently called the plaintiff. She stated that the plaintiff carried a beeper and a cell phone.

Gary Gamble worked at Apria and was supervised by the plaintiff. He stated that Tina Gamble was married to his cousin. Mr. Gamble was instructed that the plaintiff was the back up “on call” person. He was not aware of any situation where the plaintiff was the primary “on call” person.

Dorothea Lee Peterson testified that she worked at Apria. Tina Gamble was her immediate supervisor. Ms. Peterson stated that she was told by Ms. Gamble and Ms. Daniel that the plaintiff was the primary back-up “on call” person. According to Ms. Peterson, when the answering service took over after hours, it was instructed to refer all problems to the plaintiff. Ms. Peterson stated that Ms. Daniel and Ms. Gamble were not “on call.”

Karen Daniel testified that she was the branch manager of Apria for Shreveport, Monroe, and Alexandria. The plaintiff, a logistics supervisor, was in charge of the PSTs. She denied the plaintiffs contention that he was the only supervisor contacted if a PST or a RT could not be reached. She stated that she usually got one or two calls per month. Ms. Daniel recalled one occasion in which Ms. Gamble took an after-hours phone call that was very lengthy. She was paid for that call because the occurrence was out of 19the ordinary. Ms. Daniel denied telling other Ap-ria employees that the plaintiff was the primary back-up “on call” person.

According to Ms. Daniel, the plaintiff never requested payment for handling calls after-hours. She stated that the company only had primary “on call” employees and that there was no such thing as a back-up “on call” person. She stated that supervisors were listed on the call list with the answering service because in some rural areas the PST or RT cannot receive a page or cell phone call.

It is well settled that the trial court’s finding of fact may not be set aside on appeal in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the fact-finder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). An appellate court should not substitute its opinion for the conclusions made by the district court, which is in a unique position to see and hear the witnesses as they testify. In re A.J.F., 2000-0948 (La.6/30/00), 764 So.2d 47.

Under Apria’s employment guidelines, both theories presented by the parties regarding wages were possible. The defendant’s view was that supervisors, like the plaintiff, are to be available for off-hours calls as a part of their duties as supervisors. Their salary provides compensation for this Imduty. The plaintiff contends that he was placed on “on call” duty which is additionally compensated by the memo of February 9, 1999. It was up to the trial judge to make the factual determination as to whether the plaintiff was fulfilling his supervisory duties or was specifically charged with “on call” duty. The trial judge found the plaintiff to have been placed “on call” or back-up “on call.”

Plaintiff did not carry his burden of proof that he was the primary “on call” employee for 16-17 weeks. Therefore, that portion of the judgment awarding pay for primary “on call” duty is reversed and vacated. The evidence did support that the plaintiff is entitled to pay for back-up “on call” duty. However, as set forth below, we amend the judgment in this regard, based on an incorrect calculation of the amount of time the plaintiff worked in the back-up “on call” position.

The plaintiff outlined at trial how he arrived at the amount of pay to which he claimed entitlement. In his petition, the plaintiff sought unpaid wages for “on call” and back-up “on call” duty for four years. He claimed that he was entitled to such pay beginning on the effective date of the February 1999 memo which authorized “on call” or back-up “on call” pay for logistics supervisors. He stated that he was backup “on call” for 196 weeks. He arrived at this figure by subtracting vacation time, claiming he was back-up “on call” for 49 weeks per year for four years. He then claimed that he was the primary person “on call” for 17 weeks. These figures exceed four years. With 52 weeks in a year, four years would only equal 208 weeks, even if no time for vacation was subtracted. When the claimed 16JT7U weeks of primary call is considered, the amount of time for which the plaintiff claims he is entitled to payment exceeds the four years of unpaid wages he asserted in his petition.

We note that the memo from Mr. Bian-chi, changing the “on call” policy to include positions such as the plaintiffs, took effect on March 8, 1999. The plaintiff resigned from Apria on July 23, 2002. Although he gave two weeks notice, he was asked to leave that day. The length of time from March 8, 1999 to July 23, 2002 is approximately three years and 19 weeks.

Even though, under the circumstances set forth in Apria’s policy, the plaintiff was entitled to payment for back-up “on call” services, the calculations put forth by the plaintiff and awarded by the trial court are inconsistent with the time periods for which the plaintiff could have been back-up “on call.” Accordingly, we amend the trial court judgment to award pay to the plaintiff for the appropriate amount of back-up “on call” duty. As pled by the plaintiff, we allow him 49 weeks per year back-up “on call” compensation for three years, plus the additional 19 weeks he was employed with Apria in 2002, for a total of 166 weeks at $92.50 per week. We amend the trial court judgment to provide that the amount of unpaid wages due the plaintiff is $15,355.00.

IMPEACHMENT

Apria contends that the trial court erred in refusing to admit the records of its answering service to impeach the plaintiffs claim that he had been “on call” with the company for four years. The plaintiff testified that l^for four years, on only one occasion was another supervisor contacted when a PST or RT did not timely answer a call. To impeach this testimony, Apria sought to introduce the daily fax messages from the answering service for two years prior to the plaintiffs resignation. Apria claims that the records show that the plaintiff received only one or two calls per month and that other supervisors at the company also received calls. The plaintiff objected to the introduction of the documents because they were not listed as exhibits on the pretrial order and they were not produced in discovery. The court ruled that the documents were inadmissible.

The plaintiff issued a subpoena duces tecum to Apria’s answering service for “all documents from 1998 to present pertaining to Apria Healthcare.” The subpoena then listed numerous specific items pertaining to Apria. Apria’s answering service faxed information to the company each morning concerning all calls received after hours. While Apria had these records, they were neither disclosed to the plaintiff in response to discovery requests nor were they listed as an exhibit on the pretrial ordér. The questioning of Ms. Daniel at trial showed the plaintiffs attorney asked her at her deposition about evidence relating to the plaintiffs claim for “on call” pay. Even though the records were present at that time, she did not disclose them.

Discovery is governed by La. C.C.P. arts. 1420, et seq. Under La. C.C.P. art. 1428, a party has a duty to reasonably supplement discovery responses. Courts have regularly exercised their inherent powers by imposing sanctions for failing to timely supplement discovery responses. Bozeman v. State Department of Transportation and Development, 34,430 (La.App.2d Cir.4/4/01), 787 So.2d 357, writ denied, 2001-1341 (La.6/29/01), 794 So.2d 813.

La. C.C.P. art. 1551 gives a court wide discretion to provide for implementation of a pretrial order and to insure that the items of the pretrial order are enforced. The theory inherent in pretrial procedure is the avoidance of surprise and the allowance of the orderly disposition of the case. The pretrial order controls the subsequent course of action, though it can be modified at trial to prevent substantial injustice. Vernon v. Wade Correctional Center, 26,053 (La.App.2d Cir.8/19/94), 642 So.2d 684. The trier of fact is given broad discretion to determine whether to modify a pretrial order. This discretion is controlled by the principle that it must be exercised to prevent substantial injustice to the parties who have relied on the pretrial rulings or agreements and structured the preparation and presentation of their cases accordingly. Absent an abuse of discretion, the trier of fact’s decision will be upheld. Vernon v. Wade Correctional Center, supra.

The pretrial order shows that the documents from the answering service were not listed by Apria. The defendant argues that it did not know that it would need the impeachment evidence until after the testimony of the plaintiff. Therefore, the documents could not be disclosed. ■ Further, this information was gathered prior to the hearing; Apria contends that it was not responsive to any request for discovery by the plaintiff and so was not disclosed.

| uApria argues that it was not required to list the answering service documents because they were being used to rebut the plaintiffs claims of entitlement to “on call” wages. We find that these documents, rather than being used for impeachment, addressed the primary issue in dispute-the plaintiffs entitlement to “on call” pay.

As such, Apria was required to disclose the documents to the plaintiff and to list them on its pretrial order. Due to Apria’s failure to do so, the trial court did not err in excluding the documents at trial. See Vernon v. Wade Correctional Center, supra; Offord v. Holloway Construction 567 So.2d 690 (La.App. 3d Cir.1990).

PENALTY WAGES

Apria contends that the trial court erred in ordering it to pay penalty wages in this matter. The company points out that under La. R.S. 23:632, penalty wages are to be awarded only if the failure to pay an employee is arbitrary or unreasonable. Apria denies that it acted in bad faith. Rather, it contends that it had a good faith defense to the claims of the plaintiff. Therefore, the payment of penalty wages was not justified.

La. R.S. 23:632 provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be hable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court 'which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed 11Rfrom time' of making the first demand following discharge or resignation.

This statute is designed to compel prompt payment of wages upon an employee’s discharge or resignation. Boudreaux v. Hamilton Medical Group, Inc., 94-0879 (La.10/17/94), 644 So.2d 619. It is well-settled that statutory provisions that are penal in nature are to be strictly construed. In order for the employee to recover such penalty wages, the employer must be found to have acted in an arbitrary or unreasonable manner. Moore v. Fleming Subway Restaurants, 28,543 (La.App.2d Cir.8/21/96), 680 So.2d 78. Equitable defenses are available, and penalty wages are not to be absolutely imposed irrespective of the circumstances. It is only a good-faith, non-arbitrary defense to penalty wage liability which will permit the courts to excuse the employer from the imposition of penalties. Henderson v. Kentwood Spring Water, Inc., 583 So.2d 1227 (La.App. 1st Cir.1991).

Whether there exists a valid equitable defense depends on the particular facts of each case. A trial court’s findings of fact with regard to whether the plaintiff is entitled to penalty wages cannot be reversed on appeal in the absence of manifest error or unless clearly wrong. Trahan v. Pousson, 497 So.2d 58 (La.App. 3rd Cir.1986).

Apparently, the trial court found that Ms. Daniel, the plaintiffs supervisor, was the one who assigned him to back-up “on call” status and then denied him compensation. In the present case, we do not find that the trial court erred in finding that the plaintiff was entitled to penalty wages.

I ^CONCLUSION

For the reasons stated above, we reverse and vacate that portion of the trial court judgment awarding the plaintiff, Robert H. Robinson, wages for “on. call” duty. We affirm the finding of the trial court that the plaintiff is entitled to additional compensation from the defendant, Apria Healthcare, Inc., for back-up “on call” work. We amend the judgment to award 166 weeks pay for back-up “on call” duty at a rate of $92.50 per week. This award totals $15,355.00. We affirm the trial court award of penalties and attorney fees to the plaintiff. Costs in this court are assessed to the defendant.

REVERSED AND VACATED IN PART; AMENDED IN PART; AFFIRMED IN PART.

CARAWAY, J., concurs in part and dissents in part with written reasons.

h CARAWAY, J.,

concurring in part and dissenting in part.

I respectfully dissent from that portion of the majority’s opinion affirming the trial court’s award for on-call wages at the back-up rate of pay. The portion of the opinion reversing the trial court’s award for 16-17 weeks of on-call duty is correct, since Robinson never showed himself to be on-call.

The employment relationship is a matter of contract requiring an agreement of the parties. La. C.C. arts. 2746, et seq. and art. 1906. A critical element for a valid contract is the parties’ mutual consent or meeting of the minds. In this case, the agreement that must be found was one of modification of the obligations of the parties’ existing contract whereby Robinson had agreed for a set salary to perform managerial duties, including the same duties for which he now seeks additional wages. Despite Apria’s unilateral expression of policy on February 9, 1999, Robinson continued to work for over three years for the same salary with his existing understanding of the employment contract. There was no meeting of the minds for a modification agreement, no offer by Apria, no acceptance by Robinson. La. C.C. art. 1927. This suit therefore is Robinson’s attempt to prove that Apria intended for him a clear and unambiguous offer which he now belatedly desires to accept after the parties’ contract had long been performed under a different agreement.

Aside from Apria’s disputed policy statements, Robinson’s managerial role as logistics supervisor was documented through the following written agreements of which he was aware. Robinson’s job description stated that[ghe was responsible for “scheduling and dispatching of Patient Service Technicians on a daily and on-call basis.” An off-hour or weekend period would be the on-call period during which he was to locate and dispatch a PST who did not immediately respond to the answering service call for a job. If the PST could not be found, Robinson would talk directly with the client. Yet, remarkably, he rarely was required to go to the client’s home, and consequently, he seeks no call back pay in this suit. Before February 9, 1999, in accordance with his written job description, he was performing this dispatching duty on an on-call basis in his management role without extra pay. His consent to that salaried contract is clear.

Apria’s employee handbook, revised in May 1999, did say that certain categories of exempt employees were “to be ‘on-call’ or ‘called-back’ to perform emergency work” and concluded, “your supervisor will inform you if you are eligible for on-call pay.” Robinson said he asked, was told he was not eligible, and the record shows that he continued performance with his activities in taking off-hour calls. Also, stated in receipts for the handbook signed by Robinson is the following: “[T]he rules, policies and benefits contained in the employee handbook may be changed, modified, or deleted at any time,” and “I understand that neither this handbook nor any other communication by a management representative is intended in any way to create a contract of employment.” Therefore, on the one hand, from the documents to which he was privy, he was told that until his supervisor told him that he was entitled to more than his salary, that’s all he got. On the other hand, from the corporate policy document he never saw, he now [ odaims more. Significantly, Robinson does not allege that his supervisor’s denial of on-call pay was an act of fraud or that he was discriminated against as an employee in a protected class.

Before considering Apria’s written policy documents, the first important point that should be recognized is that Robinson’s intent concerning those written documents is irrelevant. He never saw them. Apria is not estopped for Robinson’s reliance upon the never-communicated expressions of its policy. Apria alone may construe whether its involved policy statements governing its nationwide organization were intended to apply to Robinson’s role in its Shreveport branch.

Robinson Exhibits 6 and 8 reflect (i) the April 1, 1998 Policy Manual provision on “Compensation-On Call and Call Back Pay,” (ii) the February 9, 1999 Bianchi memo reflecting changes to the Policy Manual on that subject, and (iii) the August 1, 2002 Policy Manual on the same subject. In general, these documents affirmed that most exempt positions were ineligible for on-call pay and that designation of on-call employees was to be based upon the business necessity of the particular branch office. Yet, a construction of the policy for an exempt/management/supervisor in Robinson’s position is that he could be on-call, entitled to either a full on-call rate or a back-up on-call rate. It is significant that the title to the section on Compensation does not list three categories, “On Call, Back Up On Call, and Call Back Pay.” An exempt salaried employee had to first be scheduled in the on-call role for which he would then become entitled to Reither a full on-call rate of pay or a backup on-call rate. Robinson was never scheduled in the Shreveport office as on-call.

There is one caveat in these Policy Manual documents which states that the exempt employee gets either the full on-call pay rate or the back-up on call rate “for relief purposes only.” Unilaterally, what did the company mean by this? Would an exempt manager like Robinson, as a part of his salaried duties, continue to take on-call calls in situations which are not for “relief purposes?” My review of the record convinces me that the two Apria management witnesses offered a good faith expression of the company’s intent for a limited application of the new policy after April 9, 1999, “for relief purposes only” and that the small Shreveport office did not pay any of its salaried supervisors under this policy.

First, no other management personnel in the Shreveport area branch apparently ever got on-call pay, either at the full rate or “back-up” rate. Yet, they were also taking some phone calls and tracking down the scheduled on-call non-exempt responders, if at no other times, when Robinson was on vacation. The explanation of this policy by the Apria management witnesses stated that there remained for all exempt/management, the general salaried duty of receiving off-hour calls after the primary/non-exempt/ responders, who were in fact on-call, would not respond to the initial page. Second, the policy of “for relief purpose only” would override this general salaried duty to receive calls if Robinson had ever been on-call formally (i.e., for relief purposes), in that he was the first line responder, filling in for a nonexempt employee because of a sporadic shortage of PSTs, or in other 1 .¡words, in “emergency relief.” Third, the routine schedule of the on-call non-exempt responders was posted monthly, and since only non-exempt employees showed up on the list, Robinson would be required to request a true on-call status in situations of such emergency relief purposes. Since the back-up personnel would need to know that Robinson was to be the on-call responder, evidence of corporate records documenting his on-call status should have been presented.

Next, the confusion with the written policy language surrounds the column “Backup On-call Rate” and the language, “Backup shall mean subject to secondary, not primary call.” In the non-exempt employee role this is easily understood. If the primary on-call responder does not respond, the back-up is paid at a flat rate to back him up, and if the back-up travels to the customer, he also receives call-back pay. Even though the new policy of February 1999 expressly addressed this situation, there was no testimony that two nonexempt employees were ever scheduled in the Shreveport office for a weekend or otherwise as being on-call and back-up on-call. The Apria witnesses indicated that this could occur in the much larger Apria branches around the nation where numerous clientele created the greater possibility that two PSTs would be needed to respond to two homes simultaneously. In Shreveport, with few non-exempt employees, the management personnel were the only back-ups and they seldom if ever responded by going to a patient’s house. Shreveport did not have a scheduling practice of listing two non-exempt employees (an on-call and a back-up on-call). Back-up in the large branch sense meant back-up | firesponders going to client homes, and that role was never needed in Shreveport.

This long and detailed explanation of Apria’s view of its nationwide policy was undisputed at trial and therefore did not present to the trial court a fact issue which this court must now review under the manifest error standard. This was Apria’s unilateral intent to pay extra compensation to salaried employees in circumstances that varied internally within the company. Robinson did not understand that uncom-municated policy any differently nor rely on it to his detriment, thinking his existing salary contract was modified. He never accepted Apria’s offer to pay him more because he never knew about it and Apria never intended it. Apria presented to the trial court its one-sided view of its policy which cannot be said to be totally unreasonable, fraudulent or discriminatory. Robinson received what he bargained for both before and after April 9, 1999, and proved no contractual modification in his employment by an offer from Apria which he accepted.

      .We are cognizant of the general rule that an employee handbook does not create a contract between an "at will" employee and his employer. Keller v. Sisters of Charity of the Incarnate Word, 597 So.2d 1113 (La.App. 2d Cir.1992); Stanton v. Tulane University of Louisiana, 2000-0403 (La.App. 4th Cir.1/10/01), 777 So.2d 1242, writ denied, 2001-0391 (La.4/12/01), 789 So.2d 597. Neither party disputes that the compensation guidelines found in the memo and handbooks would apply to the plaintiff under the specified circumstances. The question presented is whether the plaintiff showed that he met the requirements to receive additional compensation.

      . We note that the plaintiff resigned from Apria on July 23, 2002, before the date of this policy manual.

      . Apria also provided payment for PSTs and RTs who were actually called out into the field after hours to handle patient needs. This is referred to as "call back" pay. The plaintiff does not claim that he was ever required, as a supervisor, to go to a patient’s residence. Therefore, there is no claim before us for "call back" pay.

      . Mr. Fletcher, Mr. Patricola and Ms. White had each secured counsel regarding employment disputes with Apria.


author: SMITH, Chief Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Larry McPHAIL.
    No. 2003-JP-02532-SCT.
    Supreme Court of Mississippi.
    May 27, 2004.

      Luther Brantley, attorney for appellant.
    James K. Dukes, Jr., attorney for appel-lee.
   SMITH, Chief Justice,

for the Court.

¶ 1. This judicial performance case is before the Court on the Joint Motion for Approval of Recommendations filed by the Mississippi Commission on Judicial Performance and Justice Court Judge Larry McPhail, Post Two, Lamar County, Mississippi.

¶ 2. On December 5, 2002, the Commission filed a formal complaint charging Judge McPhail with judicial misconduct in violation of Canons 1, 2 A, 2 B, 3 A, 3 B(2), 3 B(7), 3 B(8), 3 C(l), 3 C(2), 4 A, and 4 D(l) of the Code of Judicial Conduct of Mississippi Judges and Miss.Code Ann. § 9-11-33. The Commission further charged that Judge McPhail had violated Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 3. Judge McPhail filed his answer to the formal complaint on February 24, 2003. The Commission recommended, and Judge McPhail agreed, that he should receive a public reprimand and be suspended without pay for a period of thirty days and assessed with court costs in the amount of $401.14. In lieu of an evidentiary hearing, an Agreed Statement of Facts and Proposed Recommendation was submitted and filed by counsel for the Commission and counsel for Judge McPhail on July 15, 2003. Five separate and distinct violations were found.

FACTS

¶ 4. First, the Commission found that Judge McPhail, in his official capacity as a justice court judge, on December 13, 2002, presided over a case styled Thomas (Greg) Pittman v. Zoofari Land. After hearing testimony from both parties, Judge McPhail took the matter under advisement. On February 28, 2002, Judge McPhail advise the court clerk that he was ruling in plaintiffs favor in the amount of $2,500.00 plus costs, and he prepared a judgment so reflecting and bearing the date of the oral announcement of his decision. On March 22, 2002, Judge McPhail signed the judgment, and it was mailed to the parties the same day. Mr. Saucier, the Defendant, contacted the justice court after receiving his copy of the judgment on March 29, 2002, and was told his time for an appeal had expired. Judge McPhail refused to take any action to allow Mr. Saucier to file his appeal. After the filing of the formal complaint in this cause, changes were implemented to ensure that judgments are dated on the date they are actually signed by the judge.

¶ 5. Second, the Commission found that Judge McPhail, in his official capacity as a justice court judge, on April 4, 2002, dismissed a case styled Check 4 Cash v. Melissa Rodgers when neither party appeared for trial. On April 22, 2002, after an ex parte contact with a representative of Check 4 Cash, Judge McPhail notified the clerk that a judgment for Check 4 Cash was being entered in the amount of $206.0 plus court costs. The judgment was prepared and signed on April 22, 2002. Notice was not given, and a hearing was not held before Judge McPhail reinstated the case. Defendant Rodgers was not given notice before judgment was rendered against her.

¶ 6. Third, Judge McPhail, in his official capacity as a justice court judge, on September 21, 2000, presided over a case styled Charles L. Howard v. Dewain Scott d/b/a Scott and Associates Landscaping. A counterclaim was filed. Both parties were represented by counsel, and after taking testimony, Judge McPhail took the case under advisement. Approximately ten months later, Judge McPhail signed a judgment dated July 12, 2001, in the amount of $800.00 plus court costs against Scott. Scott filed a motion to correct judgment or in the alternative motion to reconsider on September 14, 2001. Judge McPhail signed an order dated September 17, 2001, setting aside the original judgment following an ex parte communication with Scott’s attorney. No notice of hearing was given to Howard. Neither the motion nor the order states what the mov-ant considered incorrect or improper about the original judgment. On December 6, 2001, Howard filed a response to Scott’s motion, indicating the ex parte nature of the process leading to the entry of the September 17 order. This motion was set to be heard on May 2, 2002, but it was continued and had not been reset as of the filing of the formal complaint in this cause.

¶ 7. Fourth, Judge McPhail, in his official capacity as justice court judge, on or about May 18, 2002, was contacted by Thomas Sproles, who sought advice regarding ex parte communications with one or more of the parties and Officer Roland Arnold of the Lamar County Sheriffs Office on that date and on subsequent dates. Thomas Sproles was involved in a domestic abuse case with Meloney C. Guy. Judge McPhail informed Ms. Guy, the victim of the alleged domestic abuse, that if she did not testify, Officer Arnold could not substantiate the charge filed against Mr. Sproles. Judge McPhail directed her to call the county attorney about her refusal to testify. Judge McPhail also advised Mr. Sproles to file a counter charge against Ms. Guy. Judge McPhail then ordered that no warrant be issued against Ms. Guy at that time and advised her that he would hold said warrant until such time as the outcome of the charges against Mr. Sproles had been determined.

¶ 8. Fifth, Judge McPhail in his official capacity as justice court judge, on March 8, 2001, presided over a criminal case styled Lamar County v. Michael Goolsby for a charge of malicious mischief. This charge was filed on November 14, 2000. After hearing testimony, Judge McPhail took the case under advisement, and no decision had been rendered as of the filing of the formal complaint in this cause. Immediately following the filing of the formal complaint, Judge McPhail ruled on the issues and that case has been resolved and removed from the docket.

¶ 9. The Commission found that Judge McPhail habitually takes civil cases under advisement and does not render timely decisions; however, since the filing of the formal complaint, Judge McPhail has voluntarily changed his procedure so that any case taken under advisement will have a decision rendered by Judge McPhail by his next term of court. Judge McPhail agrees to continue to rule on any case taken under advisement no later than the next term of court.

STANDARD OF REVIEW

¶ 10. This Court conducts de novo review of judicial misconduct proceedings, giving great deference to the findings and recommendations of the Mississippi Commission on Judicial Performance. Miss. Comm’n on Judicial Performance v. Perdue, 853 So.2d 85, 88 (Miss.2003); Miss. Comm’n on Judicial Performance v. Peyton, 812 So.2d 204, 206 (Miss.2002); Miss. Comm’n on Judicial Performance v. Vess, 692 So.2d 80, 83 (Miss.1997). While giving great deference to the Commission’s findings, we are also charged to render independent judgment. In re Collins, 524 So.2d 553, 556 (Miss.1987).

ANALYSIS

¶ 11. Article 6, § 177A of the Mississippi Constitution provides in relevant part:

On recommendation of the Commission on Judicial Performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: ... (E) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

Miss.Code Ann. § 9-11-33 (2002) states:

A justice court judge may correct any errors or mistakes in any proceedings that are conducted before such judge or in the records of proceedings conducted before such judge. A justice court judge may set aside any proceeding or judgment in a case conducted before such judge upon a written order as may be just and proper after a proceeding in which the judge determines that good cause has been shown to support such order.

This Court has the sole power to impose sanctions when based on clear and convincing evidence. Miss. Comm’n Judicial Performance v. Fletcher, 686 So.2d 1075, 1078 (Miss.1996); In re Garner, 466 So.2d 884, 885 (Miss.1985).

¶ 12. The Commission found, by clear and convincing evidence, that Judge McPhail’s conduct described above was prejudicial to the administration of justice which brings the judicial office into disrepute. This Court has held that a judge may:

through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved, and warrants sanctions.

In re Anderson, 451 So.2d 232, 234 (Miss.1984). This Court has relied on similar language, finding that misconduct does not have to be imbedded in any form of bad behavior. In re Quick, 553 So.2d 522, 527 (Miss.1989). When the total course of Judge McPhail’s conduct is considered and given Judge McPhail’s agreement to the findings and recommendation, it is clear that the Commission’s findings are correct and that his conduct constitutes conduct prejudicial to the administration of justice which beings the judicial office into disrepute.

¶ 13. In Mississippi Comm’n on Judicial Performance v. Walker, 565 So.2d 1117, 1124 (Miss.1990), this Court held that, “the sanction imposed should be consistent with other like cases and ‘ought fit the offense.’ ” The Commission has recommended a public reprimand, a thirty day suspension without pay, and assessment of costs. Judge MePhail has agreed to this recommendation and joined in the Commission’s motion to accept the recommended sanctions. The proposed sanction is consistent with the prior decisions of this Court in Peyton, 812 So.2d 204 and Perdue, 853 So.2d 85. In Peyton, this Court held that the justice court judge’s violation of the judicial canons in three specific instances warranted the sanction of a thirty-day suspension without pay and assessment of court costs. In Perdue, this Court rules that a thirty-day suspension without pay for a city youth court judge, who also served as county youth court referee, was appropriate for conduct relating to an ex parte order granting temporary custody of a child to the former husband.

CONCLUSION

¶ 14. Larry MePhail, Justice Court Judge for Post Two of Lamar County, Mississippi, while acting in his official capacity as judge, violated Miss. Const, art. 6, § 177A, Miss.Code Ann. § 9-11-33, and the Code of Judicial Conduct of Mississippi Judges, Canons 1, 2 A, 2 B, 3 A, 3 B(2), 3 B(7), 3 B(8), 3 C(l), 3 C(2), 4 A, and 4 D(l). Based on similar cases, the Commission recommended that this Court sanction Judge MePhail with a public reprimand and a suspension for thirty days without pay and assessed with court costs in the amount of $401.14. We adopt the findings and sanctions recommended by the Mississippi Commission on Judicial Performance and agreed to by Judge MePhail. Lamar County Justice Court Judge Larry MePhail is publicly reprimanded, and suspended for 30 days without pay, and shall pay the costs of this proceeding in the amount of $401.04.

¶ 15. LARRY McPHAIL, LAMAR COUNTY JUSTICE COURT JUDGE, IS PUBLICLY REPRIMANDED AND SUSPENDED FOR THIRTY (30) DAYS WITHOUT PAY, AND SHALL PAY THE COSTS OF THIS PROCEEDING IN THE AMOUNT OF $401.04.

WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, EASLEY AND GRAVES, JJ., NOT PARTICIPATING.

      . In its original complaint and throughout its documents, the Commission lists violations of Canon 3 A(l) and 3 A(8); no such provisions of Canon 3 exist. However, Canon 3 B(l) and (8) do exist and apply in this case. In its attachment to the original complaint, the Commission lists in full the Canons provisions violated; in its own document, the Commission does not list 3 A(l), 3 A(8) or 3 B(l), but does list 3 B(8). Therefore, we amend the list of charges by eliminating 3 A(l) and (8) and adding 3 B(l) and (8) to reflect the correct violations.


author: IRVING, J.,

text:
    Ricky DELONEY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-02005-COA.
    Court of Appeals of Mississippi.
    May 25, 2004.

      Carolyn R. Benson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Ricky Deloney was found guilty by an Itawamba County jury of burglarizing the home of Valerie Thomas. Feeling aggrieved by his conviction, Deloney filed this appeal in which he asserts as his only issue that the trial court erred in failing to grant his motion for a JNOV or, in the alternative, a new trial.

¶ 2. Ascertaining no reversible error, we affirm.

FACTS

¶ 3. Valerie Thomas testified that, on the evening of August 1, 2001, she left her residence en route to the home of a friend, Jeff Wright, to use his telephone. She explained that when she arrived at Wright’s home, Ricky Deloney, Jamie Jones, Darnel Coats, and Jerron Cooper were present in Wright’s driveway. Thomas testified that when she left Jeffs house thirty to forty-five minutes later, Jones, Coats, and Cooper were gone. When she arrived at her home, her kitchen door was open and the kitchen light was on. Thomas affirmed that she had not left her residence in that condition before leaving for Jeffs house.

¶ 4. As she was leaving her car, to investigate what had occurred, Deloney pulled up in a car and called her by name. She told Deloney that she could not talk to him then because someone was in her house. About that time, she heard a loud crashing sound emanating from her home. She then rushed toward her house in an attempt to open her living room door. At that point, the kitchen light went out, and Jones, Coats, and Cooper rushed out through the kitchen door, ran across her yard, got in the car with Deloney who had been waiting for them, and drove off.

¶ 5. When she went into her house, she discovered that the burglars had taken a cellular telephone and a few baseball cards. They had placed her VCR and some movie videos in a bag, but they threw the bag down before fleeing the house. They had entered by kicking in the kitchen door.

¶ 6. Cooper, who was indicted along with Deloney, Jones and Coats, testified for the State pursuant to a plea arrangement. He testified that Deloney dropped Jones, Coats and him off at Thomas’s house and came back and picked them up. According to Cooper, when Deloney made the drop-off, Deloney knew that Cooper, Jones, and Coats were going to break into Thomas’s house. Cooper also affirmed a statement that he gave to his lawyer shortly before the trial. In that statement he corroborated Thomas’s statement that De-loney called her when he arrived at her house. Cooper testified that Deloney called Thomas to distract her attention from her house while he, Jones and Coats went inside. He further testified that all of them left Thomas’s house in Deloney’s car and that Deloney was the get-away driver.

¶ 7. Deloney testified to quite a different version. He testified that he went to Wright’s house after leaving work on the evening of August 1, 2001. Coats, Cooper, Jones, Wright and Thomas were at the house when he arrived, but shortly thereafter, Jones left with his girlfriend. Delo-ney further testified that, while Thomas was using the telephone, Wright, Coats, and Cooper were plotting to break into Thomas’s house to steal some weapons. Deloney said that Wright, Coats, and Cooper asked him to participate, but he would not do so. He testified that he then left Wright’s house and went to Jones’s house to play a PlayStation, but Jones was not at home. He then drove to Thomas’s house. As he arrived there, he saw Thomas pulling in her driveway. Deloney said he called Thomas to tell her about Wright, Coats, and Cooper’s plot to break into her house. He testified that he then heard a loud boom come from Thomas’s house, and Thomas ran toward her house. He then observed three men, with their shirts over their heads, run from Thomas’s house and disappear into the woods. At that point, he left Thomas’s house and went home.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. Deloney argues that the circuit court erred by denying his motion for a JNOY or, in the alternative, for a new trial because the verdict was against the overwhelming weigh of the evidence. He explains there is no evidence that he intended to participate in the burglary of Thomas’s home. Deloney further asserts that the State failed to prove the elements of burglary beyond a reasonable doubt. The State counters that there was sufficient evidence supporting Deloney’s guilt and therefore concludes that the circuit did not err in denying Deloney’s motion.

¶ 9. The standard of review for a motion for judgment notwithstanding the verdict and a motion for a new trial both are soundly embedded in our case law. A motion for judgment notwithstanding the verdict implicates the sufficiency of the evidence. Sheffield v. State, 749 So.2d 123, 125(¶ 9) (Miss.1999). In reviewing the sufficiency of the evidence, we must:

with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Franklin v. State, 676 So.2d 287, 288 (Miss.1996).

A motion for a new trial, however, falls within a lower standard of review than does that for a judgment notwithstanding the verdict. A motion for a new trial simply challenges the weight of the evidence. [An appellate] [c]ourt ... will reverse the trial court’s denial of a motion for a new trial only if [the trial] ... court abused its discretion [by denying the motion]. We will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. (Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)).[F]aetual disputes are properly resolved by a jury and do not mandate a new trial.

Holloway v. State, 809 So.2d 598, 606(¶ 22) (Miss.2000).

¶ 10. In the case sub judice, Deloney was convicted of burglary pursuant to Mississippi Code Annotated section 97-17-23 (Rev.2000) which provides that:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there, shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

¶ 11. While Deloney’s version of what happened differed from that given by Thomas and especially Cooper, it was up to the jury to resolve the conflicts and decide who was or was not telling the truth. It is the jury’s function — after hearing all the evidence, the applicable law, and instructions — to accept the testimony of some witnesses and reject that of others, as well as to accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). In other words, the credibility of witnesses is not for the reviewing court. Id.

¶ 12. We will not repeat here the facts which are set forth in the earlier portion of this opinion. Suffice it to say that, based on those facts, we find that the evidence was more than sufficient to support Deloney’s conviction of burglary. We cannot say that fair-minded persons could only find Deloney not guilty as to one or more elements of the offense.

¶ 13. We also find no abuse of discretion in the trial court’s denial of Deloney’s motion for a new trial. Considering the evidence previously described in this opinion, we are not persuaded that the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. We therefore affirm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS SUSPENDED AND FOUR YEARS OF POST-RELEASE SUPERVISION, PAYMENT OF $2,000 FINE, AND RESTITUTION IN THE AMOUNT OF $250, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ITAWAM-BA COUNTY.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.