text:
    Giselle M. BOUTTE, Individually and on Behalf of Jasmine R. Boutte v. Brian KELLY, the City of New Orleans and the New Orleans Police Department. And Other Consolidated Cases.
    No. 2004-C-0071.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re General Motors Corp.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, Nos. 91-12201, 91-14047, 92-1082; to the Court of Appeal, Fourth Circuit, No(s). 2002-CA-2451, 2002-CA-2452, 2002-CA-2453, 2003-CA-0436.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    Giselle M. BOUTTE, Individually and on Behalf of Jasmine R. Boutte v. Brian KELLY, the City of New Orleans and the New Orleans Police Department. And Other Consolidated Cases.
    No. 2004-C-0075.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re New Orleans City of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. H, Nos. 91-12201, 91-14047, 92-1082; to the Court of Appeal, Fourth Circuit, No(s). 2002-CA-2451, 2002-CA-2452, 2002-CA-2453, 2003-CA-0436.

Denied.

JOHNSON, J., would grant the writ.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    STATE of Louisiana v. Shaun L. BAILEY.
    No. 2004-KO-0139.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Bailey, Shaun L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 429-662; to the Court of Appeal, Fourth Circuit, No. 2003-KA-1030.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Noble Elias BATES.
    No. 2004-KO-0141.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Bates, Noble E.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 209,744; to the Court of Appeal, Second Circuit, No. 37,282-KA.

Denied.


text:
    STATE of Louisiana v. Rannell R. CRAIG.
    No. 2004-KO-0142.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Craig, Rannell; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 385-324; to the Court of Appeal, Fourth Circuit, No. 2001-KA-2085.

Denied.

JOHNSON, J., would grant the writ.


text:
    William M. KELLER v. Cleadieus MCLEOD, et al.
    No. 2004-C-0627.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Keller, William M.; Kenneth Parker Logging Inc.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 97-8098; to the Court of Appeal, Third Circuit, No. CA 03-267.

Denied.

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

JOHNSON, J., would grant the writ.


text:
    Colin TURNER, et al. v. MILLER TRANSPORTERS, INC. Edward E. Skelton, et al. v. Miller Transporters, Inc.
    No. 2004-C-0762.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Miller Transporters Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, Nos. 488154-H, 442006-J; to the Court of Appeal, First Circuit, No(s). 2002 CA 2278, 2002 CA 2279.

Denied.


text:
    Edward K. MORGAN, Sr. v. TERREBONNE PARISH CONSOLIDATED GOVERNMENT, Patrick Gordon and the Terrebonne Parish Council.
    No. 2004-C-0815.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Morgan, Edward K. Sr.; Chauvin, Charles D. II; Oakwood Properties Inc.;— Plaintiff(s); Applying for Writ of Certiora-ri and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 134,842; to the Court of Appeal, First Circuit, No. 2003 CA 0585.

Denied.

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

KNOLL, J., would grant the writ.


author: WEIMER, J.,

text:
    STATE of Louisiana v. Vyshaun HOLLIDAY.
    No. 2004-KK-0860.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Holliday, Vyshaun; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 442-597; to the Court of Appeal, Fourth Circuit, No. 2004-K-0252.

Denied.

KIMBALL, J., concurs in reasons to grant assigned by WEIMER, J.

JOHNSON, J., concurs in reasons to grant assigned by WEIMER, J.

WEIMER, J.,

concurring in part; dissenting in part. After the trial court denied a state motion for continuance, the State entered a nolle prosequi. The State effectively subverted the trial court’s denial of the continuance when, three days later, the State filed a second bill of information charging the defendant with the same two counts the State dismissed pursuant to the nolle prosequi. I would grant to review this procedure. See State v. Love, 00-3347, pp. 1-5 (La.5/23/03), 847 So.2d 1198, 1213-1216.


text:
    Eric ALFORD v. Ken OLIVIER, Paretti Imports, Inc. and State Farm Bureau.
    No. 2004-CC-0880.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Olivier, Karl; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 494,294; to the Court of Appeal, First Circuit, No. 2003 CW 2444.

Denied.


text:
    Tiffany Caine BOUDREAUX v. NORTHWOOD PREPARATORY HIGH SCHOOL.
    No. 2004-C-0883.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Boudreaux, Tiffany Caine; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. H, No. 2000-1776; to the Court of Appeal, First Circuit, No. 2002 CA 2403.

Denied.


text:
    Sims RACHAL v. GOOD NEIGHBOR GLASS, INC.
    No. 2004-C-0885.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Good Neighbor Glass, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation Dist. #2, No. 02-07294; to the Court of Appeal, Third Circuit, No. OS-1288.

Denied.


text:
    Rick EDMONDS, Mike Welch, Brenda O’Brock, Don Sorrells, Jeff Luce & Classic, Inc. v. CITY OF SHREVEPORT, Shreveport Metropolitan Zoning Board of Appeals & Metropolitan Planning Commission, et al.
    No. 2004-CC-0887.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Edmonds, Rick et al.; Welch, Mike; O’Brock, Brenda; Sorrells, Don; Luce, Jeff; Classic Inc.; Keasler, Robert; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Cad-do, 1st Judicial District Court Div. K, No. 473,628; to the Court of Appeal, Second Circuit, No. 38721-CW.

Denied.


text:
    Nelson Nadine WILLIAMS v. JACKSON PARISH HOSPITAL.
    No. 2004-CC-0889.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Jackson Parish Hospital; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jackson, 2nd Judicial District Court Div. B, No. 29,258; to the Court of Appeal, Second Circuit, No(s). 38562-CW, 38569-CW.

Denied.


text:
    Clark DUFRENE and Catherine Dufrene v. IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY, Alberta L. Williams and Rick’s Custom, Inc. d/b/a Rick’s Auto Collision Center.
    No. 2004-C-0891.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Imperial Fire and Casualty Ins. Co.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 84151; to the Court of Appeal, Fifth Circuit, No. 03-CA-1001.

Denied.

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

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    OFFICE OF DISCIPLINARY COUNSEL, Charles Plattsmier, Chief Disciplinary Counsel, Louisiana Attorney Disciplinary Board, Relator v. Jacqueline CARR.
    No. 2004-OB-1075.
    Supreme Court of Louisiana.
    May 21, 2004.
    Rehearing Denied July 2, 2004.
   In re Carr, Jacqueline; — Defendant; Applying for Petition for Supervisory Writs and Mandamus.

Denied.


text:
    Colin TURNER, et al. v. MILLER TRANSPORTERS, INC. Edward E. Skelton, et al. v. Miller Transporters, Inc.
    No. 2004-C-0804.
    Supreme Court of Louisiana.
    May 21, 2004.
   In re Turner, Colin et al.; Skelton, Edward E.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, Nos. 438,154, 442,006; to the Court of Appeal, First Circuit, No(s). 2002 CA 2278, 2002 CA 2279.

Denied.


author: loCOOKS, Judge.

text:
    ACADIA PARISH POLICE JURY, et al. v. TOWN OF DUSON.
    No. 03-944.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2004.
    Writ Denied May 7, 2004.
    Andre’ Doguet, Attorney at Law, Rayne, LA, for Appellant, Acadia Parish Police Jury.
    Homer Ed Barousse, Barousse & Cra-ton, Crowley, LA, for Appellant, Sheriff Kenneth Goss.
    Katherine M. Whitney, Richard P. Iey-oub, Attorney General, Baton Rouge, LA, for Appellee, State of Louisiana.
    Gerald C. deLaunay, Perrin, Landry, deLaunay, Dartez & Ouellet, Lafayette, LA, for Appellee, Town of Duson.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   loCOOKS, Judge.

STATEMENT OF THE CASE

The Acadia Parish Police Jury (Acadia Parish) and the Acadia Parish Sheriff, Ken Goss, filed a Petition for Declaratory Judgment seeking to prohibit the town of Du-son from collecting video poker revenues generated by businesses located within the town’s municipal boundaries. Acadia Parish and Sheriff Goss contend the Parish is entitled to the video poker revenue derived from video poker machines located in Acadia Parish and also within the municipal limits of the town of Duson. Acadia Parish and Sheriff Goss contend La.R.S. 33:171 is unconstitutional.

LAW AND DISCUSSION

In 1991, the Louisiana legislature enacted the Video Poker Devices Control Law, which allowed for the operation of video draw poker devices in parishes throughout Louisiana. La.R.S. 27:301, et seq. The distribution of video poker revenues is governed by La.R.S. 27:312, which provides in relevant part:

(1) Twenty-five percent to be distributed in the following priority:
(b) Second, except as provided by R.S. 33:171(B), the money remaining after the distribution provided for in Sub-paragraph (l)(a) shall be distributed as follows:
(i) To the governing authority of municipalities in which video draw poker devices are operated, the amount of the distribution to be based upon the proportion of the total amount of fees, fines, and penalties the municipality contributes to the statewide total, to be used for enforcement of the provision of this Chapter, offenses relating to gambling, and any other purpose. (Emphasis added.)
(ii) To the governing authority of each parish in which video draw poker devices are operated and the sheriff of each such parish, to be divided equally between them, the amount of the distribution to be based upon the proportion of the total amount of fees, fines and penalties the parish contributes, outside of any incorporated areas, to the statewide total, to be used for enforcement of the provision of this Chapter, offenses relating to gambling, and any other purpose. (Emphasis added.)

|4This statute provides for video poker revenues to be distributed to the governing authority responsible for the “enforcement of the provision of this Chapter, offenses relating to gambling and any other purpose.” The amount received by the governing authority is based upon a “proportion of the total amount of fees, fines, and penalties the municipality contributes to the statewide totalUnder this provision, in the unincorporated areas of the parish, the parish and the sheriff, as the governing authority responsible for oversight of the gambling establishment, receive the revenues for video poker devices. La.R.S. 27:312(C)(l)(b)(ii). However, if the video poker devices are located within a municipality, the municipality receives the revenue and is responsible for oversight and control of the gambling establishment. La.R.S. 33:171(C)(l)(b)(i). Acadia Parish and Sheriff Ken Goss do not challenge the constitutionality of these provisions.

In 1996, the legislature adopted La.R.S. 18:1300.21, which called for a local option election in each parish to determine whether to allow gaming activity in the parish. Acadia Parish voted to allow video poker devices while Lafayette Parish voted to prohibit video poker devices.

In 1999, the legislature adopted La.R.S. 33:171(B) which provides an exception to the distribution scheme provided for in La.R.S. 27:312(C)(l)(b).

La.R.S. 33:171(B) provides, in relevant part:

(B) Notwithstanding the provision -of R.S. 27:312, when the governing authority of a municipality which lies wholly within a parish in which video poker regulated by the Video Poker Devices Control Law is prohibited annexes territory in a parish in which video poker regulated by such law is permitted, no revenues for the Video Draw Poker Devices Fund shall be distributed or appropriated to the annexing municipality. This Subsection shall apply to any annexation by ordinance adopted by a municipality but which has not taken effect on June 9,1999.

This provision was enacted to prevent a municipality located wholly within a | Kparish that voted to prohibit video poker from changing its eligibility to receive revenue through the annexation of portions of a parish that voted to allow video poker. This provision only applies to municipalities which lie wholly within one parish.

The town of Duson straddles the boundary between Lafayette and Acadia Parishes. In the 1980s, the municipal boundaries of Duson were extended into portions of Acadia Parish when residents of the rural areas of Acadia Parish petitioned the town of Duson for annexation for the purpose of receiving municipal services the parish was not providing.

In 1991, when video poker was authorized statewide, businesses in the town of Duson began acquiring video poker devices. After the local option elections in 1996, all video poker devices located in the Lafayette Parish portion of the town ceased operations while video poker devices located in the Acadia Parish portion continued in business. The Four Deuces Truck Stop and Casino and Miss Mamie’s Casino, two successful establishments housing video poker machines, are physically located in Acadia Parish near the Interstate-10 interchange with Duson. Miss Mamie’s was annexed into the town in 1984, 1991 and 2001. The Four Deuces Truck Stop and Casino was annexed in June 1998. Both businesses petitioned the town for annexation for the purpose of receiving municipal services. Upon annexation into the town of Duson, the revenue generated from video poker was by law diverted into the town coffers. It is the substantial revenue from these establishments that is at issue in this dispute. Currently, video poker revenues make up nearly half of the revenues received by the town of Duson. This money is used to provide municipal services such as fire and police protection, water and sewage services, road maintenance and to assist in economic development.

| fiConstitutionality of La.RS. 33:171(B)

Acadia Parish and Sheriff Goss do not challenge the constitutionality of La.R.S. 27:312, which provides for the method of distribution of video proceeds.

Initially, we note it is undisputed that the municipal boundaries of the town of Duson are and have been located in both Lafayette and Acadia Parishes. Because Duson does not lie “wholly within a parish in which video poker ... is prohibited,” the prohibition contained in La.R.S. 33:171(B) is not applicable to the town of Duson. Acadia Parish and Sheriff Goss contend this statute creates a classification prohibited by Article VI, Section 3 of the Constitution of 1974, which provides:

The legislature may classify parishes or municipalities according to the population or on any reasonable basis related to the purposes of the classification. Legislation may be limited in its effect to any such class or classes.

Acadia Parish and Sheriff Goss contend there is no rationale basis for distinguishing between municipalities located wholly within the physical boundaries of one parish and those municipalities whose physical boundaries encompass more than one parish. This distinction, petitioners contend, defeats the legislative purpose behind La. R.S. 33:171(B), which was to protect the integrity of the local option vote in each parish and prevent a municipality located wholly within a parish that voted to prohibit video poker from changing its eligibility to receive revenue through the annexation of portions of a parish that voted to allow video poker. Petitioners assert Du-son should not be allowed to benefit from the revenue generated by Miss Mamie’s and Four Deuces. However, as petitioners point out, although these businesses were annexed (partially or completely) pri- or to the effective date of the statute, neither location applied for its video poker gaming license until after the effective date of the statute. Miss Mamie’s submitted its application on June 23, 1999 and Four Deuce’s submitted its application on March 1, 2002. In other words, at the time of the 17annexation, video poker revenues were not being generated by either business. The annexations were requested by the owners and approved by the town for the purpose of receiving municipal services. Only after annexation did a windfall of revenue from video poker benefit the town of Duson. Additionally, the town of Duson encompassed portions of Acadia Parish prior to the legalization of video poker by the state legislature.

Petitioners also contend La.R.S. 33:171(B) creates an unconstitutional temporal classification by limiting its application to only those annexations not completed as of the effective date of the new law. Petitioners contend there is no rational basis for treating municipalities differently based upon when annexations occur.

We find petitioners’ arguments without merit. On its face, La.R.S. 33:171(13) does not apply to the town of Duson. Duson is not located “wholly within a parish in which video poker ... is prohibited.” Du-son is partially located in Acadia Parish, and has been since the 1980’s, long before video poker was authorized by the legislature. Acadia Parish voted to approve video poker. The state legislature is charged with the regulation of gaming. La.R.S. 27:2; Polk v. Edwards, 626 So.2d 1128, 1137 (La.1993); City of Donaldsonville v. State of Louisiana, 99-1582 (La.App. 1 Cir. 6/23/00); 764 So.2d 339. “Louisiana courts have consistently recognized that the legislature’s authority to regulate gaming constitutes a legitimate exercise of police power.” Polk, 626 So.2d at 1137; City of Donaldsonville, 764 So.2d at 344. We find La.R.S. 33:171(13) is clear and unambiguous and does not create any unreasonable classifications. It also is a legitimate exercise of its constitutional power for the legislature to except municipalities such as Duson, which are located in two parishes, from the prohibition contained in La.R.S. 33:171(B). See La. Const.art. VI, § 3 (1974). Accordingly, we affirm the decision of the trial court 18dismissing petitioners’ suit.

DECREE

Based on the foregoing review of the evidence, we affirm the decision of the trial court dismissing the petitioners’ suit. All costs of this appeal are charged to Acadia Parish Police Jury and Sheriff Ken Goss.

AFFIRMED.


author:
_y?ETTIGREW, J.
      hDOWNING, J.

text:
    David M. GASPARD v. Cecil M. GRAVES, Jr. and Debbie H. Graves.
    No. 2003 CA 0844.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Donald G. Cave, Baton Roúge, for Plaintiff — 1st Appellant David M. Gaspard.
    David M. Lefeve, Baton Rouge, for Defendants-Appellees Cecil Graves, Jr. and Debbie H. Graves.
    Stephen W. Glusnian, Baton Rouge, for Intervenor-2nd Appellant the Louisiana Automobile Dealers Association, SIF.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   _y?ETTIGREW, J.

In this case, plaintiff challenges the trial court’s judgment granting summary judgment in favor of defendants and dismissing his claim for damages. For the reasons that follow, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 26, 1998, plaintiff, David M. Gaspard (“Mr.Gaspard”), filed suit against defendants, Cecil M. Graves, Jr. and Debbie H. Graves, seeking damages for injuries he sustained on premises owned by defendants when he allegedly fell down a flight of stairs due to a defectively attached handrail. At the time of Mr. Gas-pard’s accident, defendants had leased the building in question to Cecil Graves Chevrolet, Inc. (“Graves Chevrolet”), Mr. Gas-pard’s employer. Mr. Gaspard asserted defendants were negligent under La. Civ. Code art. 2317.1 as the owners of a defective thing. In the alternative, he alleged defendants were guilty of negligence or fault pursuant to La. Civ.Code art. 2315. Louisiana Automobile Dealers Association, S.I.F. (“LADA”) intervened, seeking reimbursement for workers’ compensation benefits paid to Mr. Gaspard as a result of this accident.

In response to Mr. Gaspard’s petition for damages, defendants filed a motion for summary judgment, seeking dismissal of Mr. Gaspard’s claims on the ground that his sole remedy against defendants was via the Louisiana Workers’ Compensation Act. In their memorandum in support of the motion for summary judgment, defendants refer to various exhibits, including affidavits of Cecil M. Graves, Jr. and Debbie H. Graves, excerpts of Mr. Gaspard’s deposition, and a copy of the commercial lease between defendants and Graves Chevrolet. However, although defendants identify these exhibits as being “attached” to the memorandum for the trial court’s consideration, these exhibits do not appear in the record before us nor were they introduced into evidence during the July 10, 2002 hearing on the motion for summary judgment. In a judgment rendered on January 31, 2003, and signed on February 26, 2003, the trial court granted defendants’ motion for summary judgment and dismissed Mr. Gaspard’s suit. It is from this judgment that Mr. |3Gaspard and LADA have appealed, assigning error to the trial court’s finding that summary judgment was appropriate on the basis of the dual capacity doctrine.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Coop., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. Exxonmobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Mortal New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. Because it is the applicable substantive law that determines materiality, whether a |4particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

DISCUSSION

According to the minutes and the transcript of the July 10, 2002 hearing on the motion for summary judgment, there was no evidence introduced into the record by either the defendants or Mr. Gaspard. Defendants, as the moving party on the motion for summary judgment, bore the burden of proving that there was no genuine issue as to material fact and that they were entitled to judgment as a matter of law. It is clear from our review of the record that defendants did not meet this burden. Thus, there remained genuine issues of material fact, and summary judgment was not appropriate.

DECREE

For the above and foregoing reasons, the judgment of the trial court granting summary judgment in favor of defendants and dismissing Mr. Gaspard’s claim is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. All costs associated with this appeal are assessed against Cecil M. Graves, Jr. and Debbie H. Graves.

REVERSED AND REMANDED.

DOWNING, J., agrees and assigns additional reasons.

McClendon, j., concurs.

hDOWNING, J.

agrees and assigns additional reasons.

The question on the test was, who was Socrates? A little girl wrote, “Socrates was a wise man who went around giving other people good advice. They poisoned him.”

My good advice to attorneys is to remember that exhibits attached to the memorandum, which goes to the judge, are not in evidence. The original motion for summary judgment, with attached exhibits should be filed into the record and a copy sent to the judge. The original opposing memorandum and a copy of the exhibits goes to the judge and a copy of the opposing memorandum and the original exhibits should be filed in the record.

Although, C.C.P. art. 966 refers to pleadings, depositions, etc. on file, it would help the trial court if you would both list the affidavits attached to the motion and also list in the motion the other evidence in the record upon which you rely and also attach the documents as exhibits. This would also eliminate a lot of guesswork on the part of the court of appeal because we are not always able to determine what the trial court considered in granting or denying the motion for summary judgment.

Because C.C.P. art. 966 uses the term “pleadings” many attorneys seem to think that since the petition is a pleading that they may rely upon the facts alleged in the petition to oppose the motion for summary judgment. The article technically should say, “admissible pleading.” The first sentence]^ C.C.P. art. 967 clearly states that once a motion for summary judgment is made an adverse party may not rest upon the allegations in a pleading. The exception would be facts admitted in the petition or answer. These should be specifically pointed out and, to avoid any doubt, copied and attached to the motion or memorandum. This suggestion applies to other discovery.

“Personal knowledge,” under C.C.P. art. 967 does not include hearsay. We are constantly reviewing affidavits from a supervisor who interviewed everyone and who thereafter states he has personal knowledge because of the interviews. That is hearsay and not personal knowledge. The exceptions would be the same exceptions that would apply to hearsay, for instance, if he interviewed the opposing party and the statement was an admission. You should file a motion to strike when the other party files an affidavit with hearsay.

If you have not had time for discovery, file a motion for a continuance. I would file it in the form of an affidavit. Most of the time the attorney simply states at the hearing on the motion for summary judgment that he has not had time for discovery. C.C.P. art. 967 actually states, (i)f it appears from the affidavits of a party ... the court may refuse the application... Why take a chance?

Finally, when is a partial judgment a final judgment? If it totally removes a party from the litigation, it is a final judgment. Also, if there is no just reason for delay, it is a final judgment, after an express determination by the court. What does that mean? The legislature didn’t give any definitions or suggestions. The appellate courts have not given a list of just reasons or satisfactory “express determinations.” I would suggest that the attorneys ask the trial court to make a finding that an appellate determination of this issue will eliminate this litigation, or is required for this litigation to proceed. But, hdon’t just say those words, explain the why and how, otherwise you will have simply delayed the proceedings to have the court of appeal • decide that the reasons were not good enough. And since there are no guidelines, the probability of that happening is fairly good.

In the instant case, all of us regret not being able to decide this case because the exhibits were not in the record. However, since the court of appeal cannot take evidence there was no easy way to resolve this matter.


author: I,KUHN, J.

text:
    Victoria DAVIS v. J. Barrett BENTON.
    No. 2003 CA 0851.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Paulette Porter La Bostrie, St. Gabriel, Counsel for Plaintiff-Appellant Victoria Davis.
    Jay M. Simon, Baton Rouge, Counsel for Defendant-Appellee J. Barrett Benton.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   I,KUHN, J.

Victoria Davis filed a suit for damages against J. Barrett Benton, asserting that a letter he wrote defamed her. The trial court granted Benton’s special motion to strike pursuant to Louisiana Code of Civil Procedure article 971 and dismissed Davis’ action with prejudice. The trial court also ordered Davis to pay Benton $5,000 in attorney’s fees and to pay all costs of the proceedings. Davis has appealed, and we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 9, 2002, J. Barrett Benton submitted a complaint against Davis, who was employed as an officer with the Baton Rouge City Police Department. The complaint was in the form of a letter to Police Chief Pat Englade. In this letter, Benton informed Chief Englade that Davis lived on Kevel Drive, a street in Baton Rouge, Louisiana, on which Benton had formerly resided. Benton explained that the house in which he had formerly resided was presently leased to a tenant. According to the letter, the tenant had called Benton to complain of ongoing harassment perpetrated by Davis:

[The tenant] reported to me that, on at least four occasions, visitors to her home had been stopped by [Davis] and asked to produce their licenses and insurance documents. Although [Davis] did not issue any tickets (obviously no cause existed), the “police presence” and “shake down” of the drivers visiting the residence had its desired effect of intimidating the visitors to the home. The latest incident occurred on 4/5/02 whereby [Davis] pulled her police car into my tenant’s driveway behind the car of a guest who had been at the home for about fifteen minutes. [Davis] went out of her way to embarrass my tenant and her guest by accusing the guest of playing his music too loud when driving up to the residence. Although she doesn’t need to, my tenant assured me that she does not tolerate loud music around her home.

IsBenton’s letter also complained of other specific incidents of abuse and harassment by Davis concerning others who resided on the Kevel Drive. Benton’s letter stated that despite the fact that these residents had consistently complained of Davis’ conduct for over ten years, “the reign of abuse and harassment exacted by Davis continues.” Benton opined that Davis had “a personal agenda to harass and intimidate her neighbors with impunity.” He further complained that Davis’ “misguided agenda has resulted in an abuse of authority which not only misrepresents the role of police officers in our community but also violates the civil rights of law abiding citizens .... ” Benton’s letter requested action by the police department to resolve the matter.

On July 26, 2002, Davis filed suit against Benton. She asserted that as a 20-year veteran of the police department, she has enjoyed a good reputation for integrity, fairness, and discipline that was injured by Benton’s defamatory letter. She asserted that Benton’s letter served no purpose other than to intimidate and harass her and to lower her in the eyes of her colleagues. She alleged that as a result of the letter, she was disciplined and was ordered not to police her neighborhood.

Benton answered the petition, generally denying its allegations and affirmatively alleging that Davis’ suit was frivolous. He asserted that his letter was “an expression of a citizen’s interest and right to make an inquiry of a Police Officer’s conduct,” constituting constitutionally-protected free speech. Benton further asserted that his communication to Police Chief Englade was privileged.

Additionally, Benton filed a special motion to strike based on the provisions of Louisiana Code of Civil Procedure article 971. Benton prayed for the court to I ¿strike Davis’ action, asserting that his April 9, 2002 letter of complaint was an exercise of his right to free speech concerning a public issue. Pursuant to this special motion to strike, Benton requested the court to order plaintiff to pay reasonable attorney’s fees and all costs of the proceedings. Benton also filed a separate motion for attorney’s fees.

On December 2, 2002, the trial court held a hearing regarding Benton’s motion to strike. During this hearing, Benton introduced various affidavits into evidence. In his own affidavit, Benton stated that he leases his Kevel Drive home to Tausha Lee, who called him in early April 2002, complaining of Davis’ harassing behavior. Benton swore that Lee sought his assistance in preventing further harassment. Because he had heard numerous complaints of Davis’ inappropriate use of her position as a police officer prior to Lee’s call, Benton stated he felt a duty to Lee and the neighborhood community to report such behavior to the police department. Accordingly, he filed the April 9, 2002 complaint directed to Chief Englade. Benton’s affidavit further states that he filed the complaint with no malicious intent, and he did not copy the executed complaint to any other person, entity or administrative authority other than his legal counsel.

Lee’s affidavit states that Benton’s complaint accurately described a series of incidents in which Davis used her position as a police officer to engage in harassing behavior towards Lee’s visitors. Lee further swore that she informed Benton of Davis’ actions “in the hope that he would somehow aid her in having these actions stopped.”

j sChief Englade’s affidavit states that Benton’s April 9, 2002 letter was in the form of a citizen’s complaint alleging misconduct by Davis. He further stated that pursuant to departmental policies, the complaint was treated as a citizen’s complaint and processed only through the appropriate channels of investigation within the police department. He averred that the complaint was handled in a confidential manner and no information regarding the complaint was released or published to the general public. He also averred that the complaint was not made known to any members of the police department, except as needed to implement an investigation and then only to the appropriate chain of command over Davis. According to Chief Englade’s affidavit, the Internal Affairs division conducted an investigation as a result of Benton’s complaint, but no disciplinary action was taken against Davis as a result of the investigation.

Based on these affidavits, the trial court determined that Benton’s conduct was protected by a conditional privilege. Based on this finding and pursuant to Louisiana Code of Civil Procedure article 971, the trial court granted Benton’s special motion to strike. During the December 2, 2002 hearing, the trial court deferred its ruling on the issue of attorney’s fees. By judgment dated January 29, 2003, defendant’s special motion to strike was granted, and plaintiffs action was stricken and dismissed with prejudice.

On February 24, 2003, the trial court held a hearing on Benton’s motion for attorney’s fees. After considering evidence, the trial court granted Benton’s motion and awarded him $5,000 in attorney’s fees. Additionally, the trial court ordered Davis to pay all costs of the proceedings. The trial court signed a written judgment in accordance with these findings on March 18, 2003. Davis has | (¡appealed both adverse judgments. Davis contends the trial court erred in determining that: 1) this case involved a matter of public interest pursuant to Article 971; 2) Benton’s letter was protected by a conditional privilege; and 3) that Benton was entitled to recover $5,000 in attorney’s fees.

II. ANALYSIS

Louisiana Code of Civil Procedure article 971 provides as follows, in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
B. In any action subject to Paragraph A of this Article, a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award reasonable attorney’s fees and costs to a plaintiff prevailing on the motion.
Jt • •
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

In granting Benton’s special motion to strike, the trial court implicitly found that Article 971 was applicable, i.e., that Benton’s complaint constituted free speech under the United States or Louisiana Constitution in connection with a public issue. If such speech was defamatory, the court concluded it was protected by a qualified privilege, and thus, plaintiff had not established a probability of success on her claim.

Davis contends that the trial court improperly determined that this case involved a matter of public interest pursuant to Article 971; she argues that Benton | shad solely a pecuniary interest in the matter. She claims he was only interested in satisfying his tenant so that he did not have to look for another tenant to lease his rental property. She asserts that Benton did not live in the neighborhood and did not witness the events addressed in his complaint. She urges that the case arose out of her routine habit of patrolling her small, relatively remote, neighborhood. Davis justifies her actions, stating she felt a need to protect her community. She explains that the people who received her scrutiny were less than pleased and wanted her to stop policing the neighborhood. She also urges that she filed suit to set the record straight and to prevent Benton from “bullying her and ruining her reputation .... ”

Article 971 was enacted by Acts 1999, No. 734, § 1. Section 2 of that Act provides:

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.

Applying the language of Article 971 broadly, as directed by the legislature, we find no error in the trial court’s determination that Benton’s complaint constituted free speech in connection with a public issue. There is no need to determine whether Davis’ actions in patrolling her neighborhood were appropriate. The conduct of police officers in general is a matter of public interest. And citizens have the right to question the conduct of police officers without fear of reprisals from those whose conduct is questioned. Although Benton’s letter of 13compIaint was sent at least in part to appease his tenant and, most likely in part, to protect his rental income, it does not follow that his letter of complaint was not in connection with a public issue. The trial court properly determined that Benton’s conduct of submitting the letter of complaint to Chief Englade constitutes “[a]ny other conduct in furtherance of the exercise of the ... constitutional right of free speech in connection with a public issue or an issue of public interest.” La. C.C.P. art. 971F(l)(d).

Because Benton’s letter of complaint falls within the category of speech addressed in Article 971, Davis’ suit was subject to the special motion to strike, unless the court determined that Davis had established a probability of success on her claim. La. C.C.P. art. 971A. The trial court concluded Davis would not be successful because Benton’s speech was protected by a conditional privilege. We find no error in this conclusion.

A cause of action for defamation arises out of a violation of Louisiana Civil Code article 2315. Ruffin v. Wal-Mart, 2001-0613, p. 2 (La.App. 1st Cir.5/10/02), 818 So.2d 965, 967, writ denied, 2002-1636 (La.9/30/02), 825 So.2d 1200. The following elements are essential to prevail on a claim of defamation: 1) defamatory words; 2) publication; 3) falsity; 4) malice, actual or implied; and 5) resulting injury. Id. One who makes an otherwise defamatory statement, enjoys a conditional privilege upon establishing that he made that statement in good faith, on a matter in which he had an interest or a duty, and to another person with a corresponding interest or duty. Smith v. Our Lady of the Lake Hosp. Inc., 93-2512, p. 15 (La.7/5/94), 639 So.2d 730, 743. A statement is made in good faith when it is made with reasonable grounds for believing it to be true. Ruffin v. Wal-Mart, 2001-0613 at p. 3, 818 So.2d at 967-968.

Herein, a review of the affidavits submitted by Benton establishes that his letter of complaint was made based on a good faith belief that the statements therein were true. The matter complained of was a matter in which Benton had an interest, i.e., he sought police action to protect his tenant and others in the neighborhood from harassment by a police officer. Benton’s letter of complaint was submitted to Chief Englade, a person with authority and a corresponding duty to address matters regarding alleged police misconduct. The evidence regarding these essential facts was not contradicted by Davis. Accordingly, we find that the trial court correctly found that Benton’s letter of complaint was subject to a conditional privilege.

Lastly, Davis asserts that the award of attorney’s fees was excessive. In support of his claim for attorney’s fees, Benton submitted an affidavit establishing that his attorney’s fees totaled $6,833 for 53.45 hours of legal work. After considering the work performed in connection with the case, the trial court awarded $5,000 in attorney’s fees. Louisiana Code of Civil Procedure article 971B provides that a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney’s fees. Based on the record before us, we find no abuse of discretion in the amount awarded by the trial court.

III. CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Appeal costs are assessed against Davis.

AFFIRMED.

      . The January 29, 2003 judgment was appealed pursuant to an order signed March 14, 2003. Although the January 29, 2003 judgment was silent as to the issue of attorney's fees, the record establishes this issue had been deferred. Thus, the January 29, 2003 was a partial judgment because it did not grant Benton all of the relief for which he prayed. We recognize that generally, where a judgment is silent as to any part of a demand or any issue that was litigated, that issue or demand is deemed rejected. Best Fishing, Inc. v. Raricatore, 1996-2254, p. 5 (La.App. 1st Cir. 12/29/97), 706 So.2d 161, 163. However, the record herein establishes that defendant’s motion for attorney’s fees was not litigated during the December 2, 2002 hearing addressing defendant’s special motion to strike. Although the January 29, 2003 partial judgment was not immediately appealable because it was not designated as a final judgment by the court after an express determination that there was no just reason for delay, we can consider the correctness of this interlocutory judgment in conjunction with the appeal of the March 18, 2003 judgment, which is final and appealable. See People of Living God v. Chantilly Corp., 251 La. 943, 947-948, 207 So.2d 752, 753 (1968); Houghton v. Our Lady of the Lake Hosp., Inc., 2003-0135, p. 3 (La.App. 1st Cir.7/16/03), 859 So.2d 103, 105.


author: 1 .GAIDRY, J.

text:
    John G. AUGMAN v. M. Craig COLWART.
    No. 2003 CA 0869.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    John G. Augman, Kinder, Plaintiff/Appellant In Proper Person.
    Gary F. LeGros, Jr., Franklin, Counsel for Defendant/Appellee M. Craig Colwart.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   1 .GAIDRY, J.

This is a legal malpractice action brought by the plaintiff-appellant, John G. Augman, against his former criminal defense counsel, the defendant-appellee, M. Craig Colwart, arising from a criminal prosecution of Mr. Augman. From a judgment sustaining a dilatory exception raising the objection of prematurity and dismissing his petition, Mr. Augman appeals, We reverse and remand this action to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

According to his petition in this matter, Mr. Augman was charged with the criminal felony offense of possession of a firearm by a convicted felon, La. R.S. 14:95.1, in proceedings in the 16th Judicial District Court for St. Mary Parish. The court assigned him counsel from the St. Mary Parish Indigent Defender’s Office based on his indigent status. Mr. Augman’s defense was undertaken by Mr. Colwart, the chief indigent defender, and an assistant, Lyn-den Burton. Following a jury trial, Mr. Augman was convicted as charged on October 23, 2001. His conviction was ultimately affirmed on appeal, although the original sentence was amended.

Mr. Augman filed his petition in this matter on October 22, 2002. His petition alleges that Mr. Colwart committed a number of acts constituting malpractice during his representation of Mr. Augman through the conclusion of the trial, including failing to seek enforcement of a supposed plea bargain that would have allowed entry of a plea to a misdemeanor under La. R.S. 14:95, misrepresenting the terms of the supposed plea bargain, failing to properly supervise Mr. Burton, failing to issue certain trial subpoenas, and |aconflict of interest, among others. He further alleges that Mr. Colwart is liable for acts constituting breach of contract, fraud, and conspiracy to deprive him of his constitutional rights prior to his conviction.

On December 2, 2002, Mr. Colwart filed an Exception of Prematurity in response to the petition. The hearing on the exception was held on March 14, 2003. Following the hearing, the trial court sustained the exception. Its judgment sustaining the exception and dismissing this action without prejudice was signed on March 17, 2003. Mr. Augman then instituted this appeal.

ISSUE PRESENTED

Is a civil petition alleging legal malpractice in representing a criminal defendant premature pending the final disposition of the criminal proceeding?

ANALYSIS

The issue presented for our determination necessarily requires us to examine the law pertaining to when a cause of action for legal malpractice arises. Jurisprudence relating to prescription or peremption of legal malpractice claims is particularly helpful in this regard, as such cases frequently hinge upon when the running of prescription or peremption commences.

The leading case on the issue of when a cause of action for legal malpractice arises is that of Braud v. New England Insurance Company, 576 So.2d 466 (La.1991). There, the plaintiffs sued their former attorney for his alleged negligence in improperly obtaining and confirming a default judgment that was sought to be annulled. The legal malpractice suit was filed more than a year after the allegedly negligent acts and more than a year after the action of nullity was filed. The court of appeal reversed the trial 14court’s judgment sustaining a peremptory exception of prescription, holding that prescription did not commence until the underlying nullity action was concluded. The supreme court reversed, agreeing with the trial court that the cause of action accrued when the nullity action was filed, explaining:

Until the client suffers appreciable harm as a consequence of his attorney’s negligence, the client cannot establish a cause of action for malpractice. The cause of action arises, however, before the client sustains all, or even the greater part, of the damages occasioned by his attorney’s negligence. Any appreciable and actual harm flowing from the attorney’s negligent conduct establishes a cause of action upon which the client may sue. [Citations omitted.]

Id. at 468.

Here, the ultimate harm of which Mr. Augman complains, his conviction, sentencing, and incarceration for violation of La. R.S. 14:95.1, clearly occurred prior to the filing of this action. Accordingly, on that ground alone, his petition would not appear to be premature. This conclusion is reinforced by additional jurisprudential authority.

Louisiana Revised Statutes 9:5605 is the statute of limitations relating to legal malpractice claims “whether based upon tort, or breach of contract, or otherwise.” La. R.S. 9:5605(A); Carter v. Schott, 96-2722, p. 4 (La.App. 1st Cir.2/20/98), 707 So.2d 1048, 1050. Thus, the multiple, overlapping theories of recovery set forth in the petition do not change the scope of our analysis. The statute provides that a legal malpractice action must be filed “within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered,” but in no event later than three years from the date of the negligent occurrence.

Regardless of the questionable merits of the alleged cause of action, we conclude the trial court erred in sustaining the dilatory exception. | ¡¡Defamation and wrongful prosecution suits are not fairly analogous to this legal malpractice claim, as those causes of action are subject to limitation by prescription, rather than peremption. La. R.S. 9:5605 is a peremptive rather than a prescriptive statute, and the peremptive period may not be suspended for any reason. La. R.S. 9:5605(B); Reeder v. North, 97-0239, pp. 12-13 (La.10/21/97), 701 So.2d 1291, 1298-99.

The plaintiff in Reeder originally sued in federal court on July 10, 1989, to recover damages sustained as the result of an alleged check kiting and Ponzi scheme, alleging violation of state and federal securities laws. His complaint was dismissed by the district court, and that dismissal was affirmed on appeal. Pending the appeal, the plaintiff had filed a separate state court action against the same defendants, asserting other claims arising under Louisiana law. That action was ultimately dismissed on the grounds that the federal judgment was res judicata as to the omitted Louisiana law claims. The plaintiff then sued his attorneys on September 15, 1994, for their negligence in fading to include the Louisiana law claims in the federal suit. The court of appeal held that “until the judgment giving rise to the malpractice claim becomes definitive, a legal malpractice claim does not ripen into a cause of action.” Reeder v. North, 96-165, p. 10 (La.App. 5th Cir.11/14/96), 683 So.2d 912, 916. In that vein, it held that the plaintiffs claim did not “ripen” until the U.S. Supreme court denied certiorari in the federal action, and that since suit was filed within a year of that date, it was timely. The supreme court squarely rejected the court of appeal’s conclusion that the peremptive period did not begin to run until the U.S. Supreme Court denied cer-tiorari. It likewise rejected the plaintiffs argument that “his malpractice claim might have been dismissed as premature” if filed while the underlying action was still on appeal, citing Braud, supra. Reeder, 97-0239 at p. 7, 701 So.2d at 1296. It expressly recognized “the perceived inequities of this statute,” but held that the date of the negligent act itself, not the judgment giving definitive effect to that act, triggers the one-year and three-year periods. Id. While also recognizing the possibility that “a person’s claim may be extinguished before he realizes the full extent of his damages,” the court held that the establishment of a peremptive statute of limitations is “exclusively a legislative prerogative.” Reeder, 97-0239 at p. 9, 701 So.2d at 1296. In her dissent, Justice Johnson expressed the contrary view that a client should not be “required to file suit against his attorney while the [original] suit is being litigated and before a judgment is definitive,” and that his cause of action for malpractice should not “ripen into a legal malpractice claim until ... all legal avenues were exhausted.” Reeder, 97-0239 at p. 1 (dissenting opinion), 701 So.2d at 1300.

Here, the issue is the “other side of the coin.” If the plaintiff in a legal malpractice claim cannot urge the suspension of peremption of his cause of action, or that his cause of action does not “ripen” and the peremptive period does not begin until a definitive judgment in the original litigation, then it seems obvious that the defendant may not urge prematurity as a defense on the same grounds. To hold otherwise would lead to the absurd result that a suit for legal malpractice would always be premature pending a final and definitive judgment on the relevant issue in an underlying action, even if the per-emptive period accrues prior to that time, extinguishing the cause of action. Such an interpretation is not only unreasonable, but patently unjust. The supreme court’s holdings in Braud and Reeder compel .the conclusion that the dilatory exception pleading prematurity is not properly applicable to this cause of action.

7In reaching the foregoing conclusions in the context of the narrow issue presented, we express no opinion as to either the merits of Mr. Augman’s allegations or whether his cause of action is perempted or not.

DECREE

The judgment of the trial court, sustaining the dilatory exception of the defendant-appellee, M. Craig Colwart, and dismissing the petition without prejudice, is reversed, and the action is remanded for further proceedings consistent with this opinion. All costs of this appeal are assessed to the defendant-appellee, Mr. Col-wart.

REVERSED AND REMANDED.

      . Mr. Burton was not named as a party defendant nor served with the petition. Also named as defendant, in addition to Mr. Col-wart, was "ABC Insurance Company,” a fictitious designation for Mr. Colwart’s unknown professional liability insurer.

      . State v. Augman, 02-0657 (La.App. 1st Cir.5/9/03), 844 So.2d 424 (unpublished opinion).


author: | ¡.GAIDRY, J.

text:
    BARBER BROTHERS CONTRACTING COMPANY, LLC v. Robert W. REILLY.
    No. 2003 CA 1365.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      David T. Butler, Jr., Baton Rouge, Counsel for Plaintiff/Defendant in Recon-vention/Appellant, Barber Brothers Contracting Company, LLC.
    Richard M. Upton, Baton Rouge, Counsel for Defendant/Plaintiff in Reconvention/Appellee, Robert W. Reilly.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   | ¡.GAIDRY, J.

This is an appeal from the Office of Workers’ Compensation Administration, District 5, brought by the employer-appellant, Barber Brothers Contracting Company, LLC (Barber Brothers), challenging the judgment of the workers’ compensation judge in favor of the claimant-appel-lee, Robert W. Reilly. We affirm.

PERTINENT FACTS AND RULING OF THE LOWER COURT

The employee claimant, Mr. Reilly, claimed to have been injured in a work-related accident on December 4, 2000, but did not report the accident until a week later. Based upon that circumstance and a number of other allegedly suspicious circumstances, Barber Brothers filed a contested claim with the Louisiana Workers’ Compensation Administration, challenging Mr. Reilly’s right to compensation benefits and further seeking the imposition of civil and criminal penalties under La. R.S. 23:1208 and 1208.1. Mr. Reilly reconvened for compensation benefits, medical expenses, and statutory penalties. Barber Brothers denied liability to Mr. Reilly on the grounds that a compensable accident did not occur, and alternately contended at trial that Mr. Reilly was not entitled to supplemental earnings benefits (SEB) after August 15, 2001, as Mr. Reilly was previously approved by his physicians as capable of performing light-duty work and was offered light-duty jobs with wages more than 90 percent of his average weekly wage by letter of the foregoing date.

Prior to trial, the parties stipulated that Barber Brothers had mailed a letter to Mr. Reilly on May 17, 2002, outlining available light-duty jobs specifically approved by the treating physicians, and that Mr. Reilly had received it. Following the trial on the merits, the workers’ compensation judge provided oral reasons for judgment, including his findings of fact. | .Judgment was rendered on the same day and signed later on March 7, 2003, dismissing Barber Brothers’ claims in its principal demand, and awarding Mr. Reilly SEB from April 27, 2002, through May 17, 2002, subject to credit for full salary paid prior to commencement of the weekly indemnity benefits paid. Additionally, the workers’ compensation' judge found that Barber Brothers’ premature discontinuance of SEB as of April 27, 2002, was arbitrary and capricious, entitling Mr. Reilly to $4,000.00 in attorney’s fees

ISSUES PRESENTED

Barber Brothers does not appeal that portion of the adverse judgment dismiss,-ing its principal demand. Instead, it appeals that portion rendering judgment in favor of Mr. Reilly, assigning as error the workers’ compensation judge’s findings that Mr. Reilly suffered a work-related accident and that he was entitled to SEB, and the basis of the award of attorney’s fees.

REASONS

In a workers’ compensation case, as in other civil cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Pertuis v. Architectural Fabrications, Inc., 01-2684, p. 6 (La.App. 1st Cir.12/20/02), 836 So.2d 450, 453, writ denied, 03-0231 (La.4/4/03), 840 So.2d 1216. A workers’ compensation claimant has the burden of proof to establish that a work-related accident occurred by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is afforded great weight. Id. In Bruno, the | Louisiana Supreme Court stated that a worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Therefore, if the worker testifies that he suffered an accident, a court must then look to see if the Bruno elements are satisfied. Coats v. American Tel. & Tel. Co., 95-2670, p. 5 (La.10/25/96), 681 So.2d 1243, 1245.

Although Barber Brothers did raise significant doubts as to the causation of Mr. Reilly’s medical condition and did cast doubt upon his credibility in some respects, we cannot conclude that the workers’ compensation judge erred in finding that Mr. Reilly’s version of the accident was credible and corroborated by the circumstances following the accident. Even if Mr. Reilly’s version of the accident was placed in doubt by the late report of the accident and his continuing to work after its occurrence, the workers’ compensation judge’s ultimate determination that his testimony was credible cannot be disturbed in the absence of manifest error. As we observed in Fabre v. ICF Kaiser International, 01-2734, p. 6 (La.App. 1st Cir.11/8/02), 835 So.2d 724, 728, a case involving the same' issue, an employee should not be barred from recovery because he did not realize or diagnose the full extent of his injury immediately after it happened.

Likewise, we find no manifest error in the finding that Mr. Reilly had proven his entitlement to the SEB awarded. In that regard, we expressly note that the light-duty positions offered by Barber Brothers in its letter of August 15, 2001 were not objectively defined nor specifically approved by the treating physician at that time, as Barber Brothers itself was still seeking a functional capacities examination to establish the parameters of | .¡permissible work. That examination was not accomplished until January 24, 2002, and Mr. Panepinto, Barber Brothers’ risk manager, admitted at the hearing that “[i]t was not Mr. Reilly’s fault” that he did not return to a light-duty position prior to that time. Its assignment of error in that regard has no merit. We further find no abuse of discretion in the award of attorney’s fees made pursuant to La. R.S. 23:1201.2, or in the amount of such award. See Stevens v. Wal-Mart Stores, Inc., 27,977, p. 6 (La.App. 2nd Cir.11/1/95), 663 So.2d 543, 547.

DECREE

We find no manifest error or abuse of discretion on the part of the workers’ compensation judge, and accordingly affirm the judgment through this memorandum opinion, pursuant to Rule 2-16.1(B) of the Uniform Rules of the Louisiana Courts of Appeal.

AFFIRMED.