author: | .SOL GOTHARD, Judge.

text:
    Brenda Marie Conrod SPORL v. Ronald A. SPORL.
    No. 03-CA-0364.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.
    See also 788 So.2d 682.

      H. Craig Cabral, Metairie, LA, for PlaintifEAppellee.
    Rene B. Delaup, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   | .SOL GOTHARD, Judge.

In this domestic matter defendant, Ronald Sporl, appeals a judgment of the trial court that found him in contempt of court for failing to pay child support as ordered by prior judgments, and from the sentence imposed on the contempt finding. For reasons that follow, we affirm.

Although we have a designated record in this matter, it is apparent from this limited record that since the parties were divorced in 1991, there have been problems and contempt proceedings against Mr. Sporl for failure to pay court ordered child support. One contempt judgment contained in the record dated April 18, 2001, refers to a prior judgment of contempt and finds Mr. Sporl to be in arrears in the amount of $7,611.18. The judgment contains the following sentence on the finding of contempt:

(1) Ronald A. Sporl is found in contempt for failure to timely pay child support, pursuant to Judgment dated 2-4-00 and this court makes absolute and executory a thirty (30) day consecutive jail term as previously imposed therein;
(2) Ronald A. Sporl is found in contempt for his failure to pay past due attorney’s fees and costs, pursuant to Judgment dated November 6, 2000, and this Court makes absolute and executory the fifteen (15) day jail sentence as previously imposed therein. Considering the above and foregoing executory jail sentence previously imposed, this court orders Ronald A. Sporl to immediately serve a total of forty five (45) consecutive days of incarceration in the Jefferson Parish Correction Center, and in ■ addition thereto, the Court further imposes an additional fifteen (15) consecutive day jail sentence following the | .time served by Ronald A. Sporl of forty five (45) days of incarceration as ordered. Therefore, Ronald A. Sporl shall serve a total of sixty (60) consecutive days of incarceration in the Jefferson Parish Correctional Center, effective IMMEDIATELY. '

However, the judgment provided that Mr. Sporl could purge himself of the mandatory jail term by payment of $1,000.00 by 1:00 pm on March 30, 2001, $2,750.00 before April 10, 2001, and $3,861.18 by April 30, 2001. All payments were to be made to his former wife, but delivered to her attorney’s office. The judgment further provides Mr. Sporl must pay all child support and reimbursement payments directly to his ex-wife at her home address.

Although the record contains a motion for appeal on that judgment which was granted by the trial court, there is no indication in the record that such an appeal was taken. Thus, that judgment became final.

Mr. Sporl paid the arrearages as ordered in the April 18, 2001 judgment. However, he made future payments to plaintiffs lawyer, rather than directly to plaintiff as directed by the April 18, 2001 judgment. Consequently, plaintiff filed another rule for contempt.

The trial court conducted a full hearing on the contempt motion on April 22, 2002. At the hearing, Mr. Sporl testified that he received a certified copy of the April 18, 2001 judgment and that he was aware of the order to mail all child support reimbursement payments to his wife directly. Nevertheless, he testified that he mailed 48 checks made payable to both his ex-wife and her attorney and that he mailed the checks to the attorney’s office in direct violation of the order in the judgment. He maintained he did so because the judgment was not correct. He argued that, at the hearing which resulted in the April 18, 2001 judgment, the judge did not make that condition, and that it was added by his ex-wife’s attorney in the written judgment presented to the trial judge to sign. Mr. Sporl testified that he directed his trial attorney to “correct” the judgment and it is clear from the record |4that a motion for appeal of the April 18, 2001 judgment was filed in the trial court. However, Mr. Sporl also acknowledged that he did not perfect an appeal.

After hearing all of the testimony and considering the exhibits and argument, the trial court found Mr. Sporl in contempt of that portion of the April 18, 2001 judgment which required that he send reimbursements directly to his ex-wife. That ruling was reduced to judgment on June 4, 2002. In this judgment the trial court sentenced defendant to serve 30 days in the Jefferson Parish Correctional Center and cast him in judgment for attorney’s fees in the amount of $800.00. It is from this judgment that Mr. Sporl appeals.

In brief to this Court, Mr. Sporl assigns two errors that relate to the sentence imposed for the finding of contempt. He argues the trial court abused its discretion in imposing a 30 day jail sentence for the contempt, and in awarding attorney’s fees.

Although Mr. Sporl does not specifically dispute the finding that he was in contempt of the April 18, 2001 judgment, he does argue that that judgment was obtained by ill practice because plaintiffs attorney added the paragraph to the judgment without authority of the trial court, and that he did not send prior notice to Mr. Sporl’s trial counsel. Mr. Sporl concludes that the portion of the judgment that was the basis of the finding of contempt was null.

La.C.C.P. Art. 2004 provides that a judgment obtained by ill practices may be annulled. Such an action must be brought within one year of the discovery. Art. 2004 B. In the instant case, Mr. Sporl admits that he received a certified copy of the April 18, 2001 judgment shortly after it was rendered and he knew it was incorrect. Although he filed a motion for appeal, he admits he did not pursue the matter further, and does not make a claim that an action for nullity was filed. Accordingly, we are without jurisdiction to consider this argument since it directly | ^relates to the April 18, 2001 judgment which was never appealed or collaterally attacked and is now a final, enforceable judgment.

La. C.C.P. Art. 224(2) provides that willful disobedience of a lawful judgment or order constitutes constructive contempt. La. C.C.P. Art. 225 provides that an accused can be “found guilty of contempt and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty for contempt and punished accordingly.” In the instant case, after a hearing on a rule to show cause, Mr. Sporl admitted he knew of the provision in the judgment and disobeyed it. He also admitted that he knew the judgment was not appealed and was final. Accordingly, the finding of contempt was justified.

Mr. Sporl further argues that his sentence of thirty days is excessive. Defendant also complains that the award of $800.00 in attorney fees is unwarranted or, in the alternative, excessive.

La. R.S. 13:4611(l)(d) provides that a person found guilty of contempt of an order to pay child support may be punished by a fine of up to five hundred dollars and a term of imprisonment for up to three months or both.

A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. La. C.Cr.P. Art. 881.4 D provides that the appellate court “shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” The trial judge is given wide discretion in determining a sentence, and if the record supports the sentence imposed, the court of appeal will not set aside a sentence for excessiveness. State v. Marshall, 02-1067 (La.App 5 Cir. 2/25/03), 841 So.2d 881.

As a general rule, the power of a court to punish for contempt is limited to the imposition of incarceration and fines to be paid to the court. See; Brunet v. Magnolia Quarterboats, Inc. 97-187 (La.App. 5 Cir. 3/11/98), 711 So.2d 308; writ denied, 98-0990 (La.5/28/98), 720 So.2d 343; cert. denied, Polaris Ins. Co. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999).

However, the court can award attorney fees in actions relating to child support matters under the authority of La. R.S. 9:375.

In the case at bar, Mr. Sporl was sentence to serve 30 days imprisonment to be served three consecutive days, and the remaining twenty-seven days on consecutive weekends from Friday at 8:00 a.m. through Sunday at 8:00 p.m. That is consistent with the statute and is only one-third of the jail time Mr. Sporl could have received. Further, the sentence imposed did not include a fine, which could have been allowed under the statute. Thus, we do not find an abuse of discretion in that part of the judgment that imposed imprisonment.

We also note that Mr. Sporl knew the terms of the judgment and knowingly disregarded them, sending over forty checks for $9 or $10 made out to both his ex-wife and her attorney. Each check had to be negotiated by the attorney and then forwarded to plaintiff. Under these circumstances we find no abuse of discretion in the award of $800.00 in attorney fees. See; Moises v. Moises, 97-1208 (La.App. 5 Cir. 4/15/98), 710 So.2d 1191.

For the foregoing reasons, we affirm the judgment of the trial court, and assess costs of this appeal to appellant.

AFFIRMED.

      . It appears the contempt matter was heard on March 29th and signed on April 18th.


source: Caselaw Access Project

author: I,MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Diana DAVIS v. Donald P. SEGHERS, Domani Investments, LLC and Dapco Ventures, LLC.
    No. 03-CA-456.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Law Office of Charles G. Merritt, Denise G. Funck, New Orleans, LA, for Appellants.
    Guy E. Wall, New Orleans, LA, for Ap-pellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   I,MARION F. EDWARDS, Judge.

Defendants/Appellants appeals the trial court’s award of damages and attorney’s fees to Plaintiff. For the following reasons, the judgment of the trial court is affirmed, and we further award attorney’s fees to plaintiff for costs associated with this appeal.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Diana Davis (“Davis”), purchased a town home in Jefferson Parish from Donald P. Seghers, Domani Investments, L.L.C. and Dapco Ventures, L.L.C. (“defendants”), on December 29, 2001. Shortly thereafter, Davis’ next door neighbor began to complain that rain water was entering her home through a common wall between the living room and Davis’ backyard patio. After unsuccessful attempts to rectify the drainage problem by both Davis and defendants, Davis filed suit in First Parish Court for the ^Parish of Jefferson on January 2, 2002, alleging negligence and bad construction practices.

Trial on the matter was held on June 4, 2002. The trial court awarded Davis $2,365.00 in general damages and $3,500.00 in attorney’s fees. The trial court further dismissed defendant, Donald P. Seghers, with prejudice. Defendants filed a motion for a new trial, which was denied on August 8, 2002. Defendants timely filed the present appeal.

LAW AND ANALYSIS.

On appeal, six assignments of error are raised: l)That the trial court erred in rendering judgment in favor of Davis because she failed to prove negligence or bad construction practices; 2)The trial court erred in finding in favor of Davis because she failed to prove that her back and side yards were improperly graded at the time she took control of the property; 3)The trial court erred in finding in favor of Davis because she failed to prove an actual or continuous sequence, unbroken by intervening acts, from the time she took control of the property until the flooding began after she erected an elevated plant bed; 4)The. trial court erred in finding in favor of Davis because she failed to specifically plead her action and/or basis of recovery in her petition for damages under the “NHWA”; 5)The trial court erred in granting attorney’s fees under LSA-R.S. 9:3149, and; 6)The trial court erred in awarding excessive attorney’s fees.

When an appellate court reviews the factual findings of the trial court, it is limited to a review for manifest error. The court may only modify or set aside a factual finding of the trial court when it is clearly wrong. This is resolved by determining whether the finding was reasonable in light of the |4record reviewed in its entirety. Furthermore, “where two permissible views of the evidence exists, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.”

In regard to the first three assignments of error, at issue is the cause of an acknowledged drainage problem in Davis’ back yard, and whether the problem existed at the time of sale. Donald Seghers, part owner of Domani Investments, LLC, and architect of Davis’ home, testified at trial. Seghers gave his opinion that he believed that the reason why the flooding occurred was because of a flowerbed that had been constructed by Davis. Seghers further stated that he believed that the flooding continued even after the flowerbed had been removed because the original surface grading in Davis’ yard had been altered from the condition when it was bought.

Seghers stated that he was personally present when the Jefferson Parish Inspection and Code Enforcement Department inspected the premises prior to Davis’ purchase. The Parish subsequently issued a compliance certificate to Domani Investments for the building. Seghers said that after the buildings were completed, he never found any problems with the property. He specifically recalls holding an open house in a “severe down pour,” and did not witness any flooding at that time. It was elicited at trial that Seghers had no elevation of the property taken before he sold it to Davis.

At trial, Davis testified that after she moved into her home she observed “puddling” in her back yard, but did not see as much until the new sod in the yard had rotted away. Davis said that she had planted a four foot long, three-inch high garden outside of the back door to her home. On June | B4, 2000, Davis said that she first complained to Seghers about a drainage problem in her backyard, after a next door neighbor informed Davis about water that was seeping into the neighbor’s adjoining home through a common wall in the back of the house. Davis testified that after she could not get a response from Seghers, she immediately dug trenches from her back yard to the front yard to alleviate the water build up. Davis also removed the flowerbed on June 4, 2000 when she observed that the bed inhibited some of the water from moving out.

Davis said that Seghers came out in July of 2000, but that the problem was not resolved. Davis then hired an irrigation specialist at her own expense for $1065.00 to install two catch basins and drain pipes to help solve the flooding problem. Davis testified that neither she nor the irrigation specialist altered the grading in the backyard.

Robert Sigsworth, a licensed Landscape Contractor, was admitted by the court as an expert in landscaping, and testified on Davis’ behalf. Sigsworth said that he first visited Davis’ property in the late spring or early summer of 2001, specifically during rain storms. At that time, he observed that the back patio area of Davis’ home had an extensive amount of water leaning toward the divider wall between the two units. Sigsworth testified that, in his opinion, the backyard was not properly graded and needed to be graded again for proper drainage. Sigsworth further stated that the presence of sod will tend to mask a problem with water in the yard. On cross examination, Sigsworth stated that he had not inspected Davis’ property right after she purchased it, and therefore couldn’t testify whether the grading was done properly at the time she moved in.

At the conclusion of the trial, the court noted:

U do find that there were a few problems, that there is a problem with the drainage in his (sic) backyard, whether it was from the initial construction or whether it just gradually occurred over time from erosion. The problem wasn’t noticed by Ms. Davis until she put the garden up which she said, she immediately took up. She never noticed a problem with the flooding in the backyard. Maybe she just didn’t notice it. The fact [is] when she put the garden up it started blocking everything and caused the water to dam up. But it seems to me, once she removed that garden, the yard, if it was properly graded, should have drained better than it did ... But the court is going to find that listening to the testimony of everybody and what was going on that the yard was not properly graded at the time that this lady bought the house.

Based upon our review of the record, in particular the testimony of Davis’ expert, Robert Sigsworth, we cannot say that the trial court’s conclusion of negligence in failing to properly grade the property at the time of sale, is manifestly erroneous.

In their next assignment of error, defendants assert that the trial court erred in finding in favor of the Davis because she failed to specifically plead her action and/or basis of recovery in her petition for damages under the “NHWA”, and that the trial court also erred in awarding attorneys fees under the NHWA.

Under La. R.S. 9:3150, the “New Home Warranty Act” or “NHWA” provides the exclusive remedies, warranties, and prescriptive periods as between builder and owner relative to new home construction, and no other provisions of law relative to warranties and redhibitory vices and defects apply. According to the NHWA, the warranty commencement date is the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first.

We first consider whether, as defendants claim, the NHRA is inapplicable to the present facts. Citing LSA-R.S. 9:3144 B(l), defendants |7contend that the improper grading of a property is excluded from the act. LSA-R.S. 9:3144 B(l) states:

B. Unless the parties otherwise agree in writing, the builder’s warranty shall exclude the following items:
(1) Fences, landscaping, including, but not limited to, sodding, seeding, shrubs, trees, and plantings, as well as off-site improvements, all driveways and walkways, or any other improvement not a part of the home itself.

Defendants conclude that there was no agreement that allowed the NHWA to the sodding, landscaping and grading of Davis’ back and side yards.

Conversely, Davis argues that, unlike the examples provided in LSA-R.S. 9:3144 B(l), grading is not considered landscaping, but instead is considered a “building standard,” as defined by LSA-R.S. 9:3143(2). LSA-R.S. 9:3143(2) states:

(2) “Building standards” means the standards contained in the building code, mechanical-plumbing code, and electrical code in effect in the parish, city, or other local political subdivision where a home is to be located, at the time construction of that home is commenced, or, if the parish, city, or other local political subdivision has not adopted such codes, the Standard Building Code, together with any additional performance standards, if any, which the builder may undertake to be in compliance. [Emphasis added].

LSA-R.S. 9:3144(1) further indicates that the NHWA warranty extends to “any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.”

In this case, defendant Donald Seghers testified at trial that he was familiar with Section 113.1 of the Building Code for the Parish of Jefferson that institutes certain requirements for lot grading. In particular, Seghers acknowledged that the Building Code in regard to grading required that the property had to slope upwards one inch for every twenty feet toward the rear |Rof the property. The. grading requirement, contained in Jefferson Parish’s Building Code, clearly fits the definition of a building standard, as anticipated by LSA-R.S. 9:3143(2), and we therefore find it applicable to the present case.

We further find no merit in defendants’ argument that Davis should be precluded from recovering under the NHWA since it was not specifically pled in her petition. Here the question pertains to the law that governs the cause of action, and, as previously stated, NHWA provides the exclusive remedy, warranty, and prescriptive periods as between a builder and owner relative to new home construction. Furthermore, courts can take judicial notice of the laws and statutes of the state and that judicial notice may be taken at any stage of the proceeding. Therefore, we find that even if the plaintiff had not briefed the court on the New Home Warranty Act, the court was at liberty to take judicial notice of any applicable law.

Finally, defendants dispute the award of attorney fees to Davis in the amount of $3,500.00 as excessive. An award of attorney fees should be disturbed on appeal only when there has been a clear abuse of the vast discretion afforded the trier of fact. In this case, legal counsel for Davis submitted a record of his 12.80 billable hours for the case, which accrued prior to trial. In addition, according to the estimation of the trial court, the trial itself took an additional estimated four hours to conduct. Based upon our review of the record, we cannot say that the trial court abused its discretion in its award of attorney’s fees.

IflFinally, we award $1,500.00 in attorney’s fees to plaintiff for costs associated with this appeal.

For the foregoing reasons, the judgment of the trial court is amended to include attorney’s fees incurred in association with this appeal, and affirmed as amended.

AMENDED; AFFIRMED AS AMENDED.

      . Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

      . Stobart at 882.

      . Id.

      . Stobart v. State, 617 So.2d 880, 882-883 (La.1993).

      . La.Code Evid. Art. 202.

      . Coussan v. Jim Tatman’s Mobile Homes, Inc., 1999-956 (La.App. 3 Cir. 12/15/99), 755 So.2d 293.

        . Solar v. Griffin, 554 So.2d 1324 (La.App. 1 Cir.1989), writ denied, 558 So.2d 582 (La.1990).


author: 1 .CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Raymond C. MULVIHILL.
    No. 03-KA-691.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Frank A. Brindisi, Assistant District Attorneys, Gretna, LA, for State.
    William M. Detweiler, J.D., Metairie, LA, for defendant-appellee.
    Panel composed of SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   1 .CLARENCE E. McMANUS, Judge.

The State appeals from a judgment which granted the Motion to Quash filed by Defendant, Raymond C. Mulvihill. For the reasons which follow, we reverse and remand.

On December 16, 2002, the Jefferson Parish District Attorney’s Office filed a bill of information charging Defendant, with operating a vehicle while intoxicated in violation of LSA-R.S. 14:98, having twice been previously convicted of violating LSA-R.S. 14:98. On March 24, 2003, Defendant filed a Motion to Quash the Bill of Information alleging that the State’s response to his Motion for a Bill of Particulars was insufficient and lacked specificity to substantiate prosecution under the provisions of LSA-R.S. 14:98. On April 4, 2003, prior to the hearing on the Motion to Quash, the State moved for a continuance due to the unavailability of its witness. The motion was denied. Thereafter, the trial court heard and granted Defendant’s Motion to Quash.

Detailed facts underlying the instant charge are not evident in the record; however, at the hearing on the Motion to Quash, Defendant alleged that the police report indicated he was sleeping in his vehicle while parked in a parking lot and that such facts could not support a charge of operating a vehicle while intoxicated. The State responded that there was evidence Defendant was , intoxicated and sleeping in the driver’s seat of a vehicle while the engine was running. After 1 ¡¡inquiring whether or not the vehicle was in gear, to which the State was unable to provide a response, the trial court granted Defendant’s Motion to Quash.

The State contends that the trial court erred in granting Defendant’s Motion to Quash the bill of information because Defendant’s motion did not urge any of the grounds for granting a motion to quash provided in LSA-C.Cr.P. art. 532 and that the evidence is sufficient to support a charge of operating a vehicle while intoxicated under LA-R.S. 14:98.

In State v. Perez, 464 So.2d 737 (La.1985), the Louisiana Supreme Court discussed the nature of a motion to quash and stated:

The motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge. La.C.Cr.P. art. 531-534. it is treated much like an exception of no cause of action in a civil suit. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971).
In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720 (1971); State v. Ponthieux, 254 La. 482, 224 So.2d 462 (1969). The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974); State v. Snyder, 277 So.2d 660 (La.1973).

State v. Perez, 464 So.2d at 739-740; State v. Jordan, 00-1609 (La.App. 5 Cir. 10/18/00), 774 So.2d 267, 276, writ denied, 01-3329 (La.11/9/01), 801 So.2d 363; State v. Inchaustequi, 97-189 (La.App. 5 Cir. 9/17/97), 700 So.2d 884, 885.

LSA-C.Cr.P. arts. 532 and 485 specify the grounds for quashing a bill of information and provide:

(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
L(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.

LSA-C.Cr.P. art. 485 provides:

If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured. The defect will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be.

Although Defendant’s Motion to Quash urged a ground for quashing the indictment under LSA-C.Cr.P. art. 532, specifically that the bill of particulars had shown a ground for quashing the indictment under Article 485, Defendant’s argument at the hearing on the motion related to the sufficiency of the evidence and merits of the case. Such factual matters are not properly raised by a motion to quash.

In State v. Allo, 510 So.2d 14 (La.App. 5 Cir.1987), writ denied, 514 So.2d 1174 (La.1987), the defendant filed a motion to quash the bill of information charging him with obscenity alleging that the offense lacked a necessary element, that the offense took place on property open to public view. This Court held that the trial court did not err in denying the motion. The court reasoned that defendant was essentially arguing the sufficiency of evidence and that, even if defendant’s allegation was true, it was addressing a factual matter which went to the merits of the case. The court concluded that a motion to quash was not the proper procedural vehicle to raise such an issue.

Furthermore, in State v. Sims, 426 So.2d 148 (La.1983), a case factually similar to the instant case, a deputy spotted a vehicle on the shoulder of a highway with its headlights engaged and engine running. When the deputy approached the vehicle he observed the defendant sleeping in the driver’s seat and noticed the smell of alcohol. The deputy noted that the defendant slurred his words and was swaying as he exited the vehicle. After performing poorly on two field sobriety tests, defendant was placed under arrest for DWI. The Louisiana Supreme Court held that, although there were no eyewitnesses or direct proof that the defendant actually operated his vehicle while intoxicated, the only reasonable hypothesis, based on the circumstantial evidence, was that the defendant had done so.

Based on the above, we find that the determination of whether or not the Defendant was “operating a vehicle” is a factual matter which must go to the merits of the case and is a question for trial. Therefore, the trial court erred in granting the Motion to Quash.

Accordingly, we reverse the trial court judgment which granted the Motion to Quash and remand the case to the trial court for further proceedings.

REVERSED AND REMANDED.


author: J^CLARENCE E. McMANUS, Judge.

text:
    SMOKE ONE RECORDS CORPORATION v. BOUTIT, INC.
    No. 03-CA-637.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Joseph C. Bartels, William A. Pigg, Bar-tels & Pigg, New Orleans, LA, for plaintiff-appellant.
    Roy H. Maughan, Jr., Maughan, Mau-ghan & Lormand, Baton Rouge, LA, for defendant-appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether the trial court properly granted defendant’s motion for involuntary dismissal. For the following reasons, we vacate this matter and remand it to the trial court for a new trial.

FACTS AND PROCEDURAL HISTORY

On November 3,1998, plaintiff/appellant, Smoke One Records Corporation, filed a petition for damages against defendant/ap-pellee, Boutit, Inc., d/b/a No Limit Records, alleging breach of contract. In August 1996, the parties entered into a label distribution contract. Pursuant to the contract, defendant was to distribute records produced by plaintiff from August 17, 1995 through August 17, 1996; provide plaintiff with an accounting of orders and sales of recordings; after subtracting its investment, pay plaintiff every 90 days and include an explanation of payment; and split profits on a 50-50 basis.

In October 1995, plaintiff released the album “Ghetto Stories” which defendant then distributed. In 1996, defendant paid plaintiff $17,000.00 in royalties which plaintiff contends was a partial payment. Plaintiff maintained in its petition for damages that defendant had not made any further payments or given it an accounting for the partial payment nor provided it with an accounting relative to |3the total sales of Ghetto Stories which it estimated to be 43,000 units. Plaintiff assumed that at $15.00 per unit, gross sales for Ghetto Stories would have been $645,000.00. Plaintiff noted that defendant spent $79,407.16 in production costs for Ghetto Stories. Thus, defendant still owed an accounting for approximately $548,000.00 under the contract. Defendant contended that after the distribution contract was signed both parties agreed that Priority Records, L.L.C. would act as the national distributor and that all three parties would split profits after expenses were paid.

A bench trial was held on May 15, 2000. At trial, plaintiff presented a sales summary which showed gross sales of $479,088.78 from August 17, 1995 through December 31, 1998; net sales after returns and adjustments of $363,295.36, distribution fees of $87,190.89 and production costs of $79,488.67 with a figure of $192,708.45 purporting to represent total net sales. Although defendant produced this document through discovery to plaintiff as evidenced by correspondence, it objected to its admission as prepared by a third party and not properly authenticated. The trial judge denied defendant’s objection.

At the close of plaintiffs case, defendant moved for involuntary dismissal. The trial judge granted the motion and dismissed the case, stating:

The Court finds that the burden of proof in this matter for damages rests with the plaintiff. The plaintiff has relied upon defendant’s answer to the request for production of documents which has been introduced as P-2 which was a compilation of sales summaries for Ghetto Stories for the period August 17th 1995 through December 31st 1998 which was accompanied by a letter from defendant’s attorney, Mr. Roy Maughan, Jr., which enclosed that information through December 31st of 1998. [Plaintiff] has called no witnesses to support gross sales figures, expenses, returns, adjustments, net sales or any of the figures which appear in this compilation which has been marked P-2 and introduced into the record. The Court feels the plaintiff has failed to meet them burden of proof as to the damages in this matter and grants defendant’s motion to dismiss.

| /Thereafter, plaintiff filed a motion for new trial asserting the verdict was contrary to the law and evidence. After taking the matter under advisement, the trial judge denied the motion on December 13, 2000. Plaintiff now brings this appeal. Defendant answered the appeal stating that although the trial court improperly admitted the sales summary and certain correspondence its ruling granting the involuntary dismissal was not erroneous.

DISCUSSION

In its lone assignment of error, plaintiff argues that it presented a prima facie case of breach of contract such that defendant’s motion for involuntary dismissal should have been denied. La.Code Civ. P. art. 1672(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Under La.Code Civ. P. art. 1672, the trial judge may grant a motion for involuntary dismissal when the plaintiff has failed to show a right to relief. Delapaz v. Monem, 01-1234 (La.App. 5 Cir. 2/26/02), 811 So.2d 1062, writ denied, 02-0913 (La.5/31/02), 817 So.2d 100. The applicable standard is whether plaintiff has presented sufficient evidence to establish his case by a preponderance of the evidence. Id. A judgment granting a motion for involuntary dismissal should not be reversed in the absence of manifest error. Id.

In its petition for damages plaintiff alleged it entered into a distribution contract with defendant wherein it was entitled to a 50/50 share of profits after the ^payment of fees and cost associated with the production and distribution of the album Ghetto Stories. The parties do not dispute the existence of this contract.

At trial, plaintiff relied on the sales summary it received from defendant through discovery. However, neither of plaintiffs two witnesses was able to verify the information contained in the sales summary, and the document bore no indication that it was prepared by anyone associated with defendant. The document was allowed into evidence over defendant’s objection. The document showed that net sales for Ghetto Stories were $192,708.45. From that figure, plaintiff surmised that its share of the profits was $96,364.23. After subtracting the $17,000.00 already paid it, plaintiff stated that it is still owed $79,364.23. We find that plaintiff proved: 1) that defendant was obligated (via the distribution contract) to provide an accounting tracking the sales of Ghetto Stories and to split profits after payment of costs associated with production and distribution and 2) defendant made one payment to plaintiff during the term of the contract.

The trial court granted defendant’s motion for involuntary dismissal because he opined that plaintiff failed to prove his damages by a preponderance of the evidence. The trial court’s decision seemed to turn on the fact that plaintiff did not call any witnesses who were able to substantiate the information in the sales summary introduced into evidence as P-2. As noted above, defendant objected to the admissibility of this writing as not properly authenticated. The trial judge overruled the objection stating that his ruling was based on La. C.E. art. 1007 and the jurisprudence he reviewed including, Newpark Resources, Inc. v. Marsh & McLennan of Louisiana, Inc., 96-0935 (La.App. 1 Cir. 2/14/97), 691 So.2d 208, writ denied, 1997-0691 (La.4/25/97), 692 So.2d 1094. The trial judge then noted that he would allow its introduction into evidence then “attach whatever weight accordingly should be attached to it.”

IfiLa. C.E. art. 901 provides in pertinent part that:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Article:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

Under article 901 and our reading of Newpark Resources, Inc., we believe the trial judge improperly admitted the sales summary which was produced in response to plaintiffs request for production of documents. The sales summary is not on any particular letter head and does not indicate by whom or under whose authority it was prepared. Plaintiff called the general manager of defendant company, Bout It Inc., to testify in this case. However, he had no knowledge of the veracity of the sales summary’s content or any information regarding sales of Ghetto Stories as he was not employed by defendant at the time this contract was executed. Having admitted the document, the trial judge essentially gave plaintiff the green light to present its case in reliance on the information in the sales summary. Once admitted the sales summary essentially demonstrated plaintiffs right to relief in this case. Thus, granting defendant’s motion for involuntary dismissal was erroneous under La.Code Civ. P. art. 1672(B).

Based on the record before us, the trial court was manifestly erroneous in granting defendant’s motion for involuntary dismissal. Accordingly, that judgment is vacated and remand this matter to the trial court for a new trial.

VACATED AND REMANDED.

      . Plaintiff filed a motion to strike the portion of defendant's brief objecting to the admission of evidence at trial. After reviewing the memorandum, opposition and defendant's brief, we deny that motion.


author: | ¡.JAMES L. CANNELLA, Judge.

text:
    Parish of JEFFERSON v. Hafez MUBARAK-ASSAD.
    No. 03-CA-789.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.
    Louis A. Gerdes, Jr., New Orleans, LA, for Appellant.
    Crystal M. Heine, Assistant Parish Attorney, Gretna, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   | ¡.JAMES L. CANNELLA, Judge.

Defendant, Hafez Mubarak-Assad, appeals from the default judgment entered against him in favor of the Plaintiff, Parish of Jefferson. For the reasons which follow, this appeal is dismissed as untimely.

On July 27, 2001, the Parish of Jefferson filed suit in Parish Court against the Defendant arguing that the Defendant had constructed a carport in his front yard, without a permit and in violation of parish ordinances within 20 feet of the front property line. The Parish requested that the Defendant be ordered to remove the carport.

In response, on August 6, 2001, the Defendant, in proper person, filed an exception of Lis Pendens. He did not attach a request for a rule to show cause. On August 13, 2001, the exception was summarily denied with the notation, “Must set rule to show cause.” The Defendant was not notified of this ruling.

On January 31, 2003, a default judgment was rendered in favor of the Parish. On February 25, 2003 the Parish Court issued notice of the default judgment. On March 7, 2003, the Defendant filed a motion for new trial which was denied on April 25, 2003. The Defendant filed a motion for appeal on May 8, 2003.

On appeal the Defendant argues that the trial court erred in rendering the default judgment since he had never been notified that his Lis Pendens exception 13had been denied. The Parish argues to the contrary that since the denial of the Lis Pendens exception was an interlocutory ruling, notification of its denial was not required. Rather, the Parish argues, that it was sufficient for the trial court to note the action on the court minutes and it was the Defendant’s responsibility to keep up to date on his case. Thus, the Parish argues, the default was properly taken.

We do not reach the merits of these arguments because we find, following a response to our Rule to Show Cause issued on October 9, 2003, that the appeal must be dismissed as untimely.

La. C.C.P. art. 4907 provides in pertinent part that the delay for applying for a new trial, in parish court, shall be three days, exclusive of holidays. The delay commences to run on the day after the clerk has mailed the notice of judgment. In this case the record shows that the notice of judgment was mailed on February 25, 2003. The Motion for New Trial was not filed until March 7, 2003, well past the three day deadline. An untimely motion for new trial does not suspend appeal delays. Southern Inspection and Testing, Inc. v. Skyline Steel Corp., 03-203 (La.App. 5th Cir.5/28/03), 848 So.2d 132.

Under La. C.C.P. art. 5002, an appeal from a judgment rendered by a Parish Court must be taken within ten days from the service of notice of judgment if no timely application for new trial is filed. Therefore, the appellate delays in this case began to run on February 26, 2003 and expired ten days later on March 7, 2003. The motion for appeal was not filed in this case until May 8, 2003, over two months past the due date.

Accordingly, the appeal filed by the Defendant must be dismissed as untimely.

APPEAL DISMISSED.

      . It was noted in the response that perhaps the appeal would be timely if the Court were to determine that the Lis Pendens exception was improperly denied. We disagree. This appeal is from the argued erroneous entry of the default judgment and, therefore, appellate delays must be determined from the notice of that judgment.

      . We note that even if appellate delays were counted from the date the motion for new trial was denied, the appeal would still be untimely because it was filed more than ten days after the denial of the motion for new trial.


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    Salvadore MIDENCE & Florinda Lopez Midence v. Keith WILLIAMS & XYZ Insurance Company and Hartford Insurance Company.
    No. 03-CA-598.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Michael L. Stewart, John J. Erny, III, Metairie, LA, for Hartford Insurance Company, Defendant-Appellant.
    Morgan J. Wells, Jr., Stephen M. Lar-zelere, Larzelere, Picou, Wells, Simpson, Lonero, LLC, Metairie, LA, for Mid-Continent Insurance Company, Defendant-Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

The sole issue presented by this appeal is the correctness of the trial court’s ruling that the uninsured/underinsured motorist (UM) rejection form contained in the subject insurance policy is valid. Finding no error in the ruling of the trial court, we affirm.

Facts and Procedural History

On March 26, 1999, plaintiffs, Salvador and Florinda Midence, filed suit for damages as a result of injuries they allegedly received following an automobile accident in which the vehicle they were occupying was struck in the rear by a vehicle owned and driven by defendant, Keith Williams. Plaintiffs named as defendants in this suit Williams, Williams’ liability insurer, and The Hartford Insurance Company, plaintiffs’ UM insurance carrier.

Plaintiffs subsequently amended their petition to name as defendant Price Le-Blanc, Inc. d/b/a Price LeBlanc Toyota, and its insurer, Mid-lContinent3 Insurance Company. Plaintiffs also filed a second supplemental and amending petition, alleging that at the time of the accident herein, plaintiffs were driving a vehicle owned by Price LeBlanc, Inc. d/b/a Price Leblanc Toyota, and that Mid-Continent was the liability and UM carrier for this vehicle. In its third supplemental and amending petition, plaintiff, Mr. Midence, alleges that at the time of the accident he was test driving a vehicle owned by Price LeBlanc, Inc. which was insured by Mid-Continent. Plaintiffs allege that the Mid-Continent policy provides primary coverage to the insurance provided by plaintiffs’ liability insurer, Hartford. Mid-Continent subsequently answered plaintiffs’ supplemental and amending petitions, denying liability for plaintiffs’ claims.

Thereafter, Mid-Continent brought a motion for summary judgment on the basis that Mid-Continent’s insured, Price Le-Blanc, Inc. d/b/a Price LeBlanc Toyota, executed a valid rejection of uninsured motorist coverage, as permitted by La. R.S. 22:1406, which precluded coverage to plaintiffs as a matter of law. Both plaintiffs and Hartford opposed this motion.

By judgment rendered on November 20, 2002, the trial court granted summary judgment in favor of Mid-Continent and against plaintiffs and Hartford on the basis that the UM Rejection Form in question was properly executed by Price LeBlanc, Inc. d/b/a Price LeBlanc Toyota. It is from this judgment that The Hartford Insurance Company now appeals.

Law and Discussion

Appellate courts review the granting of summary judgment de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A motion for summary judgment should be granted in the pleadings, depositions, answers |4to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

La. R.S. 22:1406(D) requires that when an insured purchases automobile liability insurance in the State of Louisiana, the insurer must provide the insured with uninsured motorist coverage in not less than the limits of bodily injury liability provided by the policy. However, this coverage is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in section D(1)(a)(ii). La. R.S. 22:1406(D)(l)(a)(i). This UM statute is to be liberally construed and a rejection of coverage provided by law must be clear and unmistakable. Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987). A valid rejection must be expressly set forth in writing and signed by the insured or his authorized representative. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992).

The policy issued by Mid-Continent includes a form relating to Louisiana — Protection against Uninsured Motorists, specifically entitled “Request for or Rejection of Coverage” which was executed on March 20, 1998 by Price LeBlanc, Jr., as Vice-President of the named insured in the policy. This form contains a list of check-boxes from which Mr. Le-Blanc could have either rejected UM coverage, requested UM coverage at limits equal to the bodily injury liability coverage in the policy, or requested UM coverage at limits lower than the bodily limits coverage in the policy. The rejection form incorporated in the policy indicates that Price LeBlanc made the following selection:

(X) I have been offered and hereby reject uninsured motorist insurance, being the insurance provided for protection of persons insured under this policy |swho would legally be entitled to recover damages from the owners or operators of uninsured motor vehicles and hit-and-run motor vehicles, as defined in the statutes of the state of Louisiana under the above numbered policy and under any renewals or rein-statements of such policy.

On appeal, Hartford contends that the form fails to comply with the requirements of Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213, in which the rejection form contained a statement that Louisiana law requires all policies to provide UM coverage unless such is rejected by the insured. Appellant also relies on a decision of the Supreme Court in Soileau v. Patterson Insurance Group, Inc., 97-1910 (La.10/31/97), 703 So.2d 4, a case in which the appellate court judgment was reversed for reasons assigned in a dissent to the majority opinion. Appellant contends that the dissent refers to the holding in Daigle, and states that a UM form is defective if it does not inform the insured of the statutorily mandated coverage. Appellant thus argues that the form in the present case is defective because it does not inform the insured of the statutorily mandated coverage, but rather merely states that the insured has been offered and rejects UM coverage.

However, we find that the rejection form at issue in the Soileau case was a different form from the one executed in the case before us. In the Soileau case, the form merely contained a statement that the insured rejected UM coverage without any reference to the three statutorily mandated options contained in La. R.S. 22:1406(D) or even any reference to an offer of such insurance by the insurer.

Conversely, in the present case, the UM rejection form executed by Mr. LeBlanc offers UM coverage to the insured and allows the insured to make a meaningful selection between the statutorily mandated options of selecting coverage equal to bodily limits coverage, selecting lower coverage |filimits or rejecting UM coverage entirely. Under these circumstances, the insured was given the opportunity to make an informed decision of whether to select or reject UM coverage pursuant to Louisiana law. We find that the UM rejection form executed in the present case meets all the requirements of La. R.S. 22:1406(D) and Daigle v. Authement, 96-1662 (La.4/8/97), 691 So.2d 1213. Accordingly, we affirm the trial court’s finding that the rejection form was valid and we find that the summary judgment rendered in favor of Mid-Continent Insurance Company was proper. Appellant shall bear all costs of this appeal.

AFFIRMED.


author: 1,GUIDRY, J. | WHIPPLE, J.,

text:
    Danny SANCHEZ v. GEORGIA GULF CORPORATION, Kroll Laboratory Specialists, Inc. and Consolidated Drug Compliance & Management, Inc.
    No. 2002 CW 0904R.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 12, 2003.
    Rehearing Denied Dec. 18, 2003.

      Andre LaPlace, Baton Rouge, Counsel for Plaintiff/Respondent Danny Sanchez.
    F. Barry Marionneaux, F. Charles Mar-ionneaux, Plaquemine, Counsel for Defendant/Realtor Georgia Gulf Corporation.
    Before: FOIL, WHIPPLE, KUHN, GUIDRY, and PETTIGREW, JJ.
   1,GUIDRY, J.

This writ application is before us on remand from the Louisiana Supreme Court. For the reasons that follow, we grant the writ application, reverse the trial court, and grant relator’s motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

On June 15, 2000, Danny Sanchez, an “at-will” employee of Georgia Gulf Corporation (Georgia Gulf), submitted to a random drug screen urinalysis. He was subsequently terminated on June 22, 2000, for allegedly testing positive for the presence of a cocaine metabolite, Benzolyecgonine. Thereafter, on September 26, 2000, Sanchez instituted this action against Georgia Gulf, contending that it had breached its statutory duties to him in dismissing him for a positive drug test without first allowing him the opportunity to provide information about prescription medication he was taking that could result in an erroneous positive result. Sanchez sought damages for physical and mental pain and suffering, loss of income, loss of reputation, and medical expenses.

Georgia Gulf responded by filing a motion for summary judgment, contending that because it could fire Sanchez “for any reason or for no reason” pursuant to the at-will employment doctrine, Sanchez had no claim against it for wrongful termination. In opposing the motion, Sanchez argued that La. R.S. 49:1001-1021, the statutory scheme governing random drug testing (“the drug-testing statute”), provided a statutory basis for his wrongful termination claim, and that where termination was based upon drug-testing results, certain statutory | ¡^requirements must be met, such as review of the results by a medical review officer and questioning of the employee as to any medications he may be taking that may give rise to a false positive result. According to Sanchez, these statutory requirements were not followed herein, and therefore, he had a claim against Georgia Gulf for wrongful termination.

For purposes of the motion, Georgia Gulf conceded that it had not followed the procedures mandated by La. R.S. 49:1007, in that the results of Sanchez’s urinalysis were not reviewed by a medical review officer, prior to Sanchez’s termination. Nonetheless, it contended that La. R.S. 49:1001-1021 does not prohibit an employer from taking disciplinary action against an employee, such as termination of employment, based on a positive drug test even though the test results are obtained without compliance to the drug-testing procedures set forth therein. Thus, Georgia Gulf contended that it was still free to fire Sanchez pursuant to the at-will employment doctrine.

Following a hearing on the motion, the trial court concluded that La. R.S. 49:1001-1021, in particular 49:1012, does grant an employee a cause of action for wrongful termination where the employee is fired because of drug test results obtained without compliance to the drug testing provisions set forth therein. Accordingly, the trial court denied Georgia Gulfs motion for summary judgment.

From that ruling, Georgia Gulf filed a writ of supervisory review with this court, which was denied on July 15, 2002. However, the Louisiana Supreme Court then granted Georgia Gulfs writ application and remanded the matter to this court | ¿with instructions “to address the relationship between the drug testing requirements set forth in La. R.S. 49:1001[-1021] and the employment at will doctrine.” Sanchez v. Georgia Gulf Corp., 02-2198 (La.11/27/02), 836 So.2d 9.

DISCUSSION

Employment At-Will Doctrine

The employer-employee relationship is a contractual relationship. As such, an employer and employee may negotiate the terms of an employment contract and agree to any terms not prohibited by law or public policy. When the employer and employee are silent on the terms of the employment contract, the civil code provides the default rule of employment-at-will.” Quebedeaux v. Dow Chemical Co., 01-2297, pp. 4-5 (La.6/21/02), 820 So.2d 542, 545.’ This default rule is contained in La. C.C. art. 2747, which provides that “[a] man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing [and t]he servant is also free to depart without assigning any cause.” Thus, under La. C.C. art. 2747, an employer is generally at liberty to dismiss an employee at any time, for any reason, without incurring liability for the discharge.

However, as recently noted by the Louisiana Supreme Court, this right is tempered by numerous federal and state laws, which proscribe certain reasons for dismissal of an at-will employee. Aside from the federal and state statutory exceptions, there are no broad public policy considerations creating exceptions to employment at-will, or affecting relationships between an employer and employee. Quebedeaux, 01-2297 at 5, 820 So.2d at 545-546.

lsIn the instant case, it is undisputed that Sanchez was an at-will employee. It is further undisputed that Georgia Gulf did not follow all of the procedures set forth in La. R.S. 49:1001-1021. Thus, the question presented is a legal one — whether La. R.S. 49:1001-1021 prohibits an employer from terminating an at-will employee for testing positive on a random drug urinalysis where the employer failed to follow the statutory procedures for conducting the drug test set forth therein.

Louisiana’s Drug Testing Statute

In 1990, the Louisiana legislature adopted comprehensive drug-testing procedures, which are now set forth in La. R.S. 49:1001-1021. Pursuant to this legislation, drug-testing of individuals in residence in Louisiana and of samples collected in this state shall be performed in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs, as issued by the National Institute on Drug Abuse Guidelines and published in the Federal Register (“NIDA guidelines”). La. R.S. 49:1005(A) and (B); La. R.S. 49:1001(14). The NIDA guidelines, which specify collection and testing procedures in order to assure accurate and unadulterated tests, set out specific requirements for reviewing and interpreting positive test results, and require that a medical review officer review drug tests prior to reporting the results to the employer. Price v. City of Bossier City, 96-2408, pp. 2-3 (La.5/20/97), 693 So.2d 1169, 1171.

Specifically, the statutory framework contemplates that the sample will be collected by a trained individual known as the “collection site person.” La. R.S. 49:1006; La. R.S. 49:1001(5); 59 Fed.Reg. 29908 § 1.2 and 2.2 (1994). The transfer of the sample to an appropriate laboratory is then regulated to ensure proper chain of custody. La. R.S. 49:1006(E).

[(An initial screening test will then be performed on the sample. This test is an immunoassay screen used to eliminate “negative” urine specimens from further consideration. La. R.S. 49:1008; La. R.S. 49:1005(A); La. R.S. 49:1001(9). If the initial test is positive, a second test, called a confirmatory test, shall be performed by a NIDA- or CAP-FUDT -certified laboratory. The confirmatory test, which is a procedure used to identify a specific drug or metabolite, is independent of the initial test and uses a different technique and chemical principle in order to ensure reliability and accuracy. La. R.S. 49:1001(6).

Of particular importance to the instant case is La. R.S. 49:1007, which provides that all confirmed positive results of drug testing shall be reported directly from the laboratory to a qualified medical review officer (MRO). In reviewing the confirmed positive result, the MRO shall contact the individual who submitted the specimen before making a final decision to verify a positive result, and reporting that result to the employer. La. R.S. 49:1007(0.

In addition to the procedures set forth above, 49:1001-1021 also contains provisions relating to the rights of the employee as well as the responsibilities of the employer. According to La. R.S. 49:1011(A) an employee who has been confirmed positive shall, upon his written request, have the right to access within seven working days records relating to his drug tests. Additionally, La. R.S. 49:1012 provides that all information received by the employer through its drug testing program are confidential communications. Louisiana Revised Statute 49:1012 further provides the following:

B. No cause of action for defamation of character, libel, slander, or damage to reputation or privacy arises in favor of any person against an employer or testing entity who has established a program of drug or alcohol testing in accordance with this Chapter, unless:
(1) The results of that test were disclosed to any person other than the employer or testing entity, an authorized employee or agent of the 17employer or testing entity, the tested employee, or the tested prospective employee;
(2) The information disclosed was based on a false test result or a failure to comply with the provisions of this Chapter;
(3) All elements of an action for defamation of character, libel, slander, or damage to reputation or privacy as established by statute or civil law, are satisfied.

Relationship Between La. R.S. 49:1001-1021 and the Employment At-Will Doctrine

In 1990, this court peripherally addressed the issue of an at-will employee’s right to sue his employer for wrongful termination based on an allegedly erroneous drug test result in Herbert v. Placid Refining Co., 564 So.2d at 373-373. In affirming the dismissal of the employee’s cause of action against the drug-testing company that allegedly reported incorrect results, this court found that even if it were assumed that the drug-testing company had negligently performed the tests, the employee could not have recovered against his employer for the resulting termination. This court concluded that because there was no constitutional or statutory provision prohibiting the employer from discharging its at-will employee as the result of a negligently-administered drug test, the employee likewise had no claim against the drug-testing company for negligently performing the test. Herbert, 564 So.2d at 373-373. (Emphasis added.)

Shortly after our decision in Herbert, the Louisiana legislature enacted the drug-testing statute outlined above. We acknowledge that La. R.S. 49:1001-1021 directs that certain procedures must be followed in administering drug tests and in evaluating and reporting the drug test results. We further acknowledge, as do the parties, that Georgia Gulf did not follow all of those procedures in regard to Sanchez. However, from a plain reading of the drug-testing statute, the legislature did not specifically provide that an employer was prohibited from ^discharging an at-will employee if it failed to have the confirmed positive results reviewed by a MRO.

Louisiana Revised Statutes 49:1012 addresses an employee’s right to confidentiality, and an employer’s obligation to ensure such confidentiality, with regard to all information received through the employer’s drug testing program and sets forth the circumstances under which an employee may assert a claim for “defamation of character, libel, slander, or damage to reputation or privacy.” This section, however, does not address an employee’s right to bring an action for wrongful termination.

Further, La. R.S. 49:1005(A) and 1008(E) deal with employers’ conduct when mandatory or discretionary consequences will be rendered to an employee as a result of drug-testing. According to La. R.S. 49:1005(A), drug testing provided for in the statute shall be performed in a NIDA- or CAP-FUDT-eertified laboratory if as a result of that testing, mandatory or discretionary consequences will be rendered to the individual. Additionally, La. R.S. 49:1008(E) provides that the results of the initial screening drug test may not be used as a basis for rendering permanent mandatory or discretionary consequences to the individual submitting the specimen. (Emphasis added.) However, neither of these statutes state that an employer’s failure to follow the statutory requirements set forth therein will subject it to liability for wrongful termination, nor do they prohibit the employer from terminating an at-will employee under these circumstances.

When the law is clear and unambiguous, and its application does not result in absurd consequences, it shall be applied as written and no interpretation may be made in search of the legislature’s intent. La. C.C. art. 9. When a statute is clear, the court must give credence to the mandate expressed by the legislature and cannot resort to construing a statute based on the spirit of the law |9as opposed to the plain wording of the law. Vogt v. Board of Levee Commissioners of the Orleans Levee District, 95-1187, pp. 9-10 (La.App. 4th Cir.9/4/96), 680. So.2d 149, 155. Further, courts may not extend statutes to situations, which the legislature never intended to be covered thereby. Schackai v. Louisiana Board of Massage Therapy, 99-1957, p. 13 (La.App. 1st Cir.9/22/00), 767 So.2d 955, 962.

Therefore, based on this court’s decision in Herbert and a plain reading of the drug-testing statute as discussed above, we find that La. R.S. 49:1001-1021 does not provide for an exception to the employment at-will doctrine.

Motion for Summary Judgment

A motion for 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 as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). 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. Keller v. Case, 99-0424, p. 4 (La.App. 1st Cir.3/31/00), 757 So.2d 920, 922, writ denied, 00-1874 (La.9/29/00), 770 So.2d 354. The interpretation of a statute is a question of law, which may be decided by summary judgment. Levy v. Vincent, 01-0277, p. 3 (La.App. 3rd Cir.7/18/01), 796 So.2d 34, 36.

As stated above, we find that La. R.S. 49:1001-1021 does not provide a statutory-basis for Sanchez’s wrongful termination claim, nor does it provide an 110exception to the employment at-will doctrine. Therefore, we find that Georgia Gulf did prove that it was entitled to judgment as a matter of law and grant its’ application for supervisory writs. Further, we reverse the judgment of the trial court, and grant Georgia Gulfs motion for summary judgment on Sanchez’s wrongful termination claim.

CONCLUSION

For the foregoing reasons, Georgia Gulfs application for supervisory writs of review is granted. As set forth above, La. R.S. 49:1001-1021 does not provide an exception to Louisiana’s at-will employment doctrine. Therefore, we reverse the judgment of the trial court denying Georgia Gulfs motion for summary judgment on Sanchez’s wrongful termination claim, and hereby grant summary judgment in favor of Georgia Gulf on that claim. All costs are hereby assessed to the plaintiffirespon-dent, Danny Sanchez.

WRIT GRANTED; JUDGMENT OF TRIAL COURT REVERSED; SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF/RELATOR GRANTED.

WHIPPLE, J., dissents for the reasons assigned.

KUHN, J., dissents for the reason assigned by Judge WHIPPLE.

| WHIPPLE, J.,

dissenting.

Pursuant to the employment-at-will doctrine, the employer and employee are free to end an at-will employment relationship at any time, and for any reason, without liability, provided that the termination violates no statutory or constitutional provision. Herbert v. Placid Refining Company, 564 So.2d 371, 373 (La.App. 1st Cir.), writ denied, 569 So.2d 981 (La.1990). As stated by the majority, the question is whether LSA-R.S. 49:1001 et seq. prohibits an employer from firing an at-will employee for testing positive on a random drug urinalysis without consequence where the employer failed to follow the statutory procedures for conducting the drug test set forth therein. I would conclude that it does.

Pursuant to the drug-testing procedures set forth in LSA-R.S. 49:1001 et seq., drug-testing of individuals in residence in Louisiana and of all samples collected in this state shall be performed in accordance with the Mandatory Guidelines for Federal Workplace Drug Testing Programs, as issued by the National Institute on Drug Abuse Guidelines and published in the Federal Register (“NIDA guidelines”). LSA-R.S. 49:1005(B); LSA-R.S. 49:1001(14).

Under this statutory framework, if the initial test is positive, a second test, called a confirmatory test, shall be performed by a NIDA- or CAP-FUDT-jcertified2 laboratory. LSA-R.S. 49:1008(D); LSA-R.S. 49:1001(6). The confirmatory test uses a different technique and chemical principle from that of the initial test in order to ensure reliability and accuracy. LSA-R.S. 49:1001(6).

The drug-testing statute further provides that all confirmed positive drug test results shall be reported directly from the laboratory to a qualified “medical review officer” for review. LSA-R.S. 49:1007(A) & (B). A “medical review officer” (“MRO”) is statutorily defined as a “licensed physician responsible for receiving laboratory results generated by [an employer’s] drug testing program who has knowledge of substance abuse disorders and has appropriate medical training to interpret and evaluate an individual’s positive test result together with his medical history and any other relevant biomedical information.” LSA-R.S. 49:1001(10).

In reviewing the confirmed positive result, the employer’s designated MRO shall contact the individual who submitted the specimen, as outlined in the NIDA guidelines, before making a final decision to verify a positive result, and reporting that result to the employer. LSA-R.S. 49:1007(B) & (C). With regard to the purpose of the requirement of review by an MRO, the NIDA guidelines provide, as follows:

An essential part of the drug testing program is the final review of results. A positive test result does not automatically identify an employee/applicant as an illegal drug user. An individual with a detailed knowledge of possible alternate medical explanations is essential to the review of results. This review shall be performed by the MRO prior to the transmission of results to administrative agency officials [or, in this case, the employer].
The role of the MRO is to review and interpret positive test results obtained through the agency’s testing program. In carrying out this responsibility, the MRO shall examine alternate medical explanations for any positive test result. This action could include conducting a medical interview with the donor, review of the donor’s medical phistory, or review of any other relevant biomedical factors. The MRO shall review all medical records made available by the donor when a confirmed positive test could have resulted from legally prescribed medication.

59 Fed.Reg. 29908 § 2.6(a) & (b) (1994) (emphasis added).

Additionally, with regard to the requirement that the MRO contact the individual who submitted the specimen, the NIDA guidelines further provide that prior to making a final decision to verify a positive test result, the MRO shall give the donor an opportunity to discuss the test result with him. 59 Fed.Reg. 29908 § 2.6(c) (1994). Under the statutory framework of the drug-testing statute and the NIDA guidelines, only after reviewing and verifying a positive test result shall the MRO report the result to the employer. LSA-R.S. 49:1007(B); 59 Fed.Reg. 29908 § 2.6(c)(1994).

When the Louisiana drug-testing statute was enacted, the stated purpose of Act No. 1036 was, in pertinent part, as follows:

[t]o enact Chapter 17 of Title 49 of the Louisiana Revised Statutes of 1950 ... relative to drug testing of ... employees employed by Louisiana employers ...; to provide that testing, which may result in mandatory or discretionary consequences to the individual, and which is performed to detect use of marijuana, opioids, cocaine, amphetamines, and phencyclidine, shall be performed in laboratories certified by the National Institute on Drug Abuse or the College of American Pathologists for Forensic Urine Drug Testing in accordance with National Institute on Drug Abuse guidelines; to provide precise technical guidelines for the implementation of such drug testing, including guidelines for collection of specimens, testing procedures, reporting of results, laboratory personnel qualifications, laboratory certification, screening laboratories, drug rehabilitation services, and related matters .... (Emphasis added).

Moreover, in looking to the language of the statute itself in the interpretation of any statute. Smith v. Southern Holding, Inc., 2002-1071, p. 7 (La.1/28/03), 839 So.2d 5, 10, section 1002 of the drug-testing statute, entitled “Applicability,” sets forth the broad scope of the drug-testing statute, stating that it “applies to testing for the presence of marijuana, opioids, cocaine, amphetamines, and phencyclidine.” LSA-R.S. 49:1002(A). The statute lists |4some exceptions to this broad scope of coverage, and, specifically, as amended in 2001, excludes some drug testing by employers, as follows: “This Chapter shall not apply to any employer or an employer’s agent who uses an on-site screening test to test an employee or prospective employee when there are no consequences as defined in this Chapter.” LSA-R.S. 49:1002(I)(emphasis added). Thus, while certain drug testing may be exempt from the requirements of the drug-testing statute, the plain wording of the statute dictates that the exemption will apply only where there will be no consequences resulting from the testing. Conversely, reading the statute as a whole, along with this amendment, clearly this statute requires that where there will be consequences of the testing, such as termination of employment based on a positive result, the procedures set forth in the drug-testing statute must be followed.

Indeed, a reading of the entire drug-testing statute demonstrates that the statute’s requirement, i.e., that an employer adhere to the procedures set forth therein if the employer intends to use the results to impose consequences on the employee submitting the specimen, is the clear, underlying theme of the statute as a whole. In interpreting a statute, all parts of the statute must be read together as a whole so that no section, clause, sentence or word becomes superfluous or meaningless. Moreover, the paramount consideration in interpreting a statute is ascertaining the legislature’s intent and the reasons that | Rprompted the legislature to enact the law. Lasyone v. Phares, 2001-1785, p. 4 (La.App. 1st Cir.5/22/02), 818 So.2d 1068, 1071, writ denied, 2002-1711 (La.10/14/02), 827 So.2d 423.

In addition to the language of LSA-R.S. 49:1002(A) and (I), the drug-testing statute further provides that a NIDA- or CAP-FUDT-certified laboratory or a state-certified screening laboratory must be utilized in conducting the required testing if, “as a result of such testing, mandatory or discretionary consequences will be rendered to the individual.” LSA-R.S. 49:1005(A)(1); LSA-R.S. 49:1001(20); LSA-R.S. 49:1008. Additionally, the drug-testing statute prohibits the use of the results of the initial screening drug test as a basis for rendering “permanent mandatory or discretionary consequences” to the individual submitting the specimen. LSA-R.S. 49:1008(E).

While the statute obviously contemplates that the results of a confirmed positive test, reviewed and reported as positive by an MRO, may be used to render mandatory or discretionary consequences to an employee testing positive, the statute also clearly contemplates that such employment action cannot be based on a positive drug test unless the specific and detailed requirements of the statute have been followed. LSA-R.S. 49:1002(A) & (I); LSA-R.S. 49:1005(A)(1); LSA-R.S. 49:1007; LSA-R.S. 49:1008(E).

| sin sum, I believe that the legislative framework of the drug-testing statute is designed to ensure that drug tests meet certain standards that guarantee reliability and accuracy before they can be used to support mandatory or discretionary consequences to an individual. Thus, reliance by an employer on drug test results that are obtained without compliance to the requirements of the drug testing statute in rendering employment consequences, such as termination of employment, in my opinion, violates the statutory provisions of LSA-R.S. 49:1001 et seq. Accordingly, the civil immunity granted by the employment at-will doctrine should not insulate the employer from suit for wrongful termination.

Accordingly, I dissent from the majority opinion and would conclude that Georgia Gulf, in support of its motion for summary judgment, failed to prove that it was entitled to judgment as a matter of law, in that it conceded that it had not followed the statutory dictates of LSA-R.S. 49:1001 et seq. when it relied upon a positive drug test to fire Sanchez. Therefore, Georgia Gulfs application for supervisory writs should be denied. I respectfully dissent.

      .Sanchez also named as defendants Kroll Laboratory Specialists, Inc., the company that performed the actual drug test and who reported the results to Georgia Gulf, and Consolidated Drug Compliance & Management, Inc., the company that administered the drug test and collected the sample. However, Sanchez later dismissed his claims against these defendants.
      In addition to the claim based on breach of statutory duties, Sanchez also asserted claims based on breach of an implied contract and defamation. However, there are no issues relating to these claims before us in this writ application.

      . In its motion for summary judgment, Georgia Gulf also sought dismissal of Sanchez's defamation claim, contending that Sanchez could not prove all of the elements of that claim. The trial court granted Georgia Gulf’s motion as to the defamation claim and dismissed that claim with prejudice.

      . Although Sanchez did not specifically state in his petition that he was asserting a claim for wrongful termination, he averred that Georgia Gulf violated its statutory duties to him in that it had fired him for a positive drug test result obtained in violation of the provisions of La. R.S. 49:1001-1021. Moreover, Sanchez listed "[l]oss of income, including benefits” as damages he suffered. Loss of income and benefits is an element of damages in a wrongful termination claim. See Bear v. Pellerin Construction, Inc., 01-0984, p. 8 (La.App. 1st Cir. 1/30/02), 806 So.2d 984, 990-991. Based on our review of the pleadings, we conclude that Sanchez is clearly complaining of the discharge itself, albeit based upon the test results. See Herbert v. Placid Refining Co., 564 So.2d 371, 373 (La.App. 1st Cir.), writ denied, 569 So.2d 981 (La.1990) (quoting Johnson v. Delchamps, 897 F.2d 808, 810 (5th Cir.1990)).

      . For instance, an employee cannot be terminated because of his race, sex, or religious beliefs. 42 U.S.C. § 2000e; 42 U.S.C. § 1981; and La. R.S. 23:301. Moreover, various state statutes prevent employers from discharging an employee for exercising certain statutory rights, such as the right to present workers' compensation claims. La. R.S. 23:1361; Quebedeaux, 01-2297 at 5, 820 So.2d at 545-546.

        .See 53 Fed.Reg. 11970 (1988). The NIDA guidelines were later amended in 1994 and 1998. See 59 Fed.Reg. 29908 (1994) and 62 Fed.Reg. 51118 (1998).

      . A laboratory certified for forensic urine drug-testing by the College of American Pathologists.

      . This requirement does not apply to pre-employment drug screening. La. R.S. 49:1008(D).

      . Sanchez argued before the trial court that he was not merely asserting a claim for wrongful termination, but that he also had asserted a claim for loss of reputation in accordance with La. R.S. 49:1012(B). Sanchez reasserts this argument before this panel as a basis for his assertion that the drug-testing statute does in fact provide him with a cause of action against Georgia Gulf, and therefore, provides an exception to the employment at-will doctrine. However, the trial court, in ruling on Georgia Gulf’s motion for summary judgment, specifically stated that it considered the loss of reputation action enunciated in La. R.S. 49:1012(B) to come within Sanchez’s defamation of character action. We agree with the trial court's assessment and find this argument to be without merit.

      . See 53 Fed.Reg. 11970 (1988). The NIDA Guidelines were later amended in 1994 and 1998. See 59 Fed.Reg. 29908 (1994) and 62 Fed.Reg. 51118 (1998).

      . This requirement does not apply to pre-employment drug screening. LSA-R.S. 49:1008(D).

      . This amendment to the drug-testing statute was enacted after the events giving rise to this litigation. While it clearly would not apply herein, it has no independent relevance to the substantive issues raised by Sanchez. I refer to this amended language only in an attempt to ascertain the legislative intent of the drug-testing statute as a whole.

      . I further note that as originally presented, Senate Bill No. 878, which formed the basis for Act No. 1036, contained a section regarding legislative intent that provided as follows: "It is the intent of the legislature that the standards mandated in this Chapter be applied and adhered to as strictly and to the fullest extent permissible under the laws and constitution of this state and the United States.” (Emphasis added). While this particular section was omitted as a result of amendments proposed by the House Committee on Labor and Industrial Relations, I believe, as discussed more fully hereafter, that the language of the act as enacted nonetheless expresses the requirement that an employer adhere to the provisions of the drug-testing statute if it intends to use those results to render mandatory or discretionary consequences in an employment relationship.

      . Although I would conclude that LSA-R.S. 49:1001 et seq. requires an employer to abide by the drug-testing procedures set forth therein if the results will be used as the basis for rendering employment consequences, and further, that terminating the employment of an employee on the basis of test results obtained without regard to these procedures will subject the employer to a claim for wrongful termination, I am not persuaded by the trial court's reasoning that this right to bring an action is granted by LSA-R.S. 49:1012.
      Louisiana Revised Statute 49:1012 addresses an employee’s right to confidentiality, and an employer’s obligation to ensure such confidentiality, with regard to all information received through the employer’s drug-testing program. LSA-R.S. 49:1012(A). Additionally, this statute sets forth the circumstances under which an employee may assert a claim for "defamation of character, libel, slander, or damage to reputation or privacy” as a result of a breach of the duty to maintain confidentiality. LSA-R.S. 49:1012(B). The legislative history of Act No. 1036, which enacted this section, indicates that the provisions of LSA-R.S. 49:1012(B) were intended to "protect the employer or testing entity from [an] action for defamation or damage to privacy unless certain specific requirements are met.” Minutes of June 29, 1990 meeting of House Committee on Labor and Industrial Relations. (Emphasis added).
      This statute, however, does not address an employee's right to bring an action for wrongful termination. In fact, counsel for Sanchez acknowledged at oral argument before this court that LSA-R.S. 49:1012 does not specifically grant an employee the right to pursue a claim for wrongful termination.
      My belief that an employee may have such a right where the statutory requirements of the drug-testing statute are not met is based upon the language of the above-specified sections in particular, and a plain reading of the drug-testing statute as a whole.

      . While the jurisprudence interpreting Louisiana’s drug-testing statute is sparse, I note that the Louisiana Attorney General had been asked to render an opinion as to the effect of certain requirements of the drugtesting statute on the employment at-will doctrine. La. Att’y Gen. Op. No. 99-100-A (Aug. 30, 1999). In particular, the attorney general was asked to consider whether the statute's prohibition from using on-site drug testing to discharge an at-will employee infringed upon an employer's right to terminate an employment relationship with an at-will employee for any reason with civil immunity. La. Att'y Gen. Op. No. 99-100-A at p. 4. In response, the attorney general noted that an at-will employee may be discharged at any time for any reason, as long as It does not violate any law. The opinion further stated that because termination of an at-will employee is a "mandatory or discretionary consequence” of a positive test result, the drug-testing statute mandates that the test must be performed in state- or nationally-certified labs. La. Att'y Gen. Op. No. 99-100-A at p. 4. The attorney general also noted that, similarly, if any mandatory or discretionary consequence is rendered against an employee as a result of a positive drug test performed in a lab that does not conform to statutory requirements, such a "consequence” would violate law. La. Att'y Gen. Op. No. 99-100-A at p. 4.