author: |, JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Robert LONGO and Roslyn Cousins v. BELL SOUTH TELECOMMUNICATIONS, INC., Entergy Corp., Cox Louisiana Telecom, L.L.C. and Louisiana Power & Light Co.
    No. 2003-CA-1887.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 7, 2004.

      Stuart H. Smith, Michael G. Stag, Smith Stag, L.L.C., New Orleans, Counsel for Plaintiff/Appellant.
    David F. Bienvenu, Shawn L. Holahan, April A. McQuillar, Simon, Peragine, Smith & Redfearn, L.L.P., New Orleans, Counsel for Defendant/Appellee, BellSouth Telecommunications, Inc.
    Richard B. Eason II, Raymond P. Ward, Adams and Reese LLP, New Orleans, Counsel for Defendant/Appellant, Cox Communications of Louisiana.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY. : ■
   |, JOAN BERNARD ARMSTRONG, Chief Judge.

This is an appeal from a summary judgment granted by the trial court in favor of defendant BellSouth Telecommunications, Inc. (BellSouth) dismissing all claims against BellSouth without prejudice should, further discovery disclose a basis for recovery. For the reasons that follow, we amend the judgment to provide that the dismissal of BellSouth is a dismissal with prejudice and we affirm the judgment of the trial court, as amended.

Plaintiffs Robert and Roslyn Longo filed suit against BellSouth, Entergy Corp.,' Cox Louisiana Telecom, L.L.C. (Cox) and Louisiana Power and Light Company (LP & L) for personal injuries allegedly sustained by Mr. Longo when a horse he was riding allegedly struck an unmarked support cable on a utility pole owned by BellSouth.

12BellSouth, through its claims manager, Richard Richardson, conducted an investigation that revealed that the wire at issue was attached to cable television facilities attached by Cox to a BellSouth utility pole. Mr. Richardson’s affidavit, made on his personal knowledge, establishes that the wire at issue was neither owned nor maintained by BellSouth, and that the wire at issue is attached to cable television facilities attached to the pole.

The plaintiffs initially opposed the motion for summary judgment claiming discovery had not been completed, and submitted a copy of counsel’s letter of July 12, 2002 seeking to depose Mr. Richardson and other corporate representatives with knowledge of the maintenance of guy wires and contractual relationships concerning guy wires on, BellSouth utility poles. The trial court continued the hearing on the motion for summary judgment. Following the taking of Mr. Richardson’s deposition, the plaintiffs supplemented their opposition, submitting Mr. Richardson’s testimony that BellSouth aerial cables were attached to the utility pole, and BellSouth uses the pole to deliver a product to its customers. Mr. Richardson testified to the existence of a “Joint Use Agreement” among the utility companies that use the pole, but had no knowledge of its contents and did not provide a copy of the agreement. The plaintiffs ultimately obtained a copy of a Joint Use Agreement between LP & L and BellSouth’s predecessor, South Central Bell Telephone Company. According to that agreement, its purpose is to establish joint use of their respective poles where such use is mutually advantageous. The agreement provides that the owner of the pole shall, at its own expense, maintain |3its joint use poles in a safe and serviceable condition; if, after proper notification, the owner does not do so, the licensee may perform necessary maintenance at the owner’s cost; both parties shall work together each year to plan a groundline inspection and treatment program for joint use polls (Article VIII-A).

Article XVII provides for allocation of liability. In case of claims for personal injury, each party is liable for all damages caused solely by its negligence or the negligence of those for whom it is responsible, and must indemnify the other party against such claims (Article XVII-A). In cases of concurrent negligence, and where damages are due to causes that cannot be traced to the sole negligence of either party or their contractors, the agreement allocates 50% liability to each of the parties (Article XVII-C). Appendix A to the agreement shows the standard space allocation along the pole, and shows that LP & L is allocated the top six feet six inches; NESC, Cable TV and municipal entities have the next lower four feet four inches, and BellSouth is allocated the last one foot eight inches. The remaining space is unallocated.

Cox filed an opposition to the motion contending that Mr. Richardson was not in a position to know which guy wire was involved in the accident, making the affidavit insufficient to support a summary judgment. Cox did not submit verified countervailing evidence.

At the hearing on BellSouth’s motion, the trial judge focused her attention on the ownership of the wire, noting that the Joint Use Agreement does not speak specifically to the wire in question. The court questioned counsel for the plaintiff ^concerning identification of the wire, and counsel responded that the wire that allegedly caused the accident in question could be and was, in fact, identified. The trial judge noted that Mr. Richardson’s affidavit established that BellSouth did not own the wire identified by plaintiffs’ counsel as the offending wire. In the absence of any countervailing evidence of record tending to establish that BellSouth owned the wire in question, the trial court granted Bell-South’s motion for summary judgment.

STANDARD OF REVIEW

Appellate courts review summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Company v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A. (2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or | smore elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.C.C.P. art. 967.

The jurisprudential presumption against granting the summary judgment was legislatively overruled by La.C.C.P. art. 966 as amended. The amendment levels the playing field between the parties, providing that the supporting documentation submitted by the parties is to be scrutinized equally and removing the prior jurisprudential overriding presumption in favor of trial. Cox argues that the reviewing court must view both the evidence and all inferences drawn from the evidence in favor of the parties opposing the motion, in whose favor all doubts must be resolved, citing Louisiana Gaming Management v. Calegan, 99-2306 (La.App. 4 Cir. 4/13/01), 786 So.2d 159, 162. We note that the authority cited for that statement in Louisiana Gaming Management is a pre-amendment case from the Louisiana Supreme Court, South Central Bell Telephone Co. v. Sewerage and Water Board, 95-0949 (La.5/19/95), 654 So.2d 1090. That case, and the principle for which it was cited, have been superceded by the 1997 amendments to the codal provisions relating to summary judgment.

The plaintiffs similarly argue that any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits, citing Smith v. Our Lady of the Lake Hospital, 93-2512 (La. 7/5/94), 639 So.2d 730, 751. This case, too, was decided prior to the relevant amendments to the Code of Civil Procedure that eliminated the bias against summary judgments and gave them a favored status.

Under the amended statute, the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, under La. C.C.P. art. 966(C), once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once mover has properly supported the motion for summary judgment, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. The amendment to La. C.C.P. art. 966 brings Louisiana’s standard for summary judgment closely in line with the federal standard under Fed.Rule Civ.Proc. 56(c). Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96); 685 So.2d 691, 694. The summary judgment law was amended by La. Acts No. 483 of 1997 to incorporate the Hayes analysis, requiring that when the nonmoving party bears the burden of proof at trial, there is no genuine issue of material fact if the nonmoving party cannot come forward at the summary judgment stage with evidence of sufficient quantity and quality for a reasonable juror to find that the party can satisfy his substantive evidentiary burden.

A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992).

In their first assignment of error, the plaintiffs and Cox contend that the trial court erred because the affidavit submitted in support of the motion for summary judgment contains ultimate conclusions of fact and law and is not based on personal knowledge.

In his affidavit submitted in support of BellSouth’s motion, Mr. Richardson clearly avers that the wire at issue was neither owned nor maintained by BellSouth. This averment is made on personal knowledge and, according to the affidavit itself, is based upon his investigation of the ownership of the particular wire. Therefore, it is not merely conclusory as were the statements contained in the affidavit rejected by this Court in Walker v. Kroop, 96-0618 (La.App. 4 Cir. 7/24/96), 678 So.2d 580 . In that case, the issue of the employment relationship, vel non, between United Cab company and its drivers was complex, involving varying types of compensation and control over the drivers’ movements and the possibility of non-employment relationships that could give rise to United’s liability for its drivers’ actions. Mr. Richardson avers that in the course of his employment as a claims manager for BellSouth, a position he held for approximately eighteen years, he undertook to investigate the basic fact at issue in this case: that is, whether or not BellSouth owned or maintained the wire that allegedly caused plaintiffs’ | ¡¡damages. His investigation led to the conclusion on personal knowledge that BellSouth neither owned nor maintained the wire.

Cox contends that the affidavit is deficient because one of its statements, that Cox owned and maintained the offending wire, was made upon information and belief. While this Court rejected “information and belief’ as the basis for an affidavit in support of a motion for summary judgment in Express Publishing Co. v. Giani Investment Co., 449 So.2d 145 (La.App. 4 Cir.1984), it is not incumbent upon Bell-South to establish the ownership of the wire in order to be entitled to summary judgment. All that is necessary is that the affidavit establishes without contradiction that BellSouth neither owned nor maintained the wire. This the affidavit has done.

Furthermore, following the filing of the BellSouth motion for summary judgment and Mr. Richardson’s supporting affidavit, the adverse parties took Mr. Richardson’s deposition. The record shows that the parties did not submit any portion of Mr. Richardson’s deposition testimony to contradict the facts alleged in the affidavit, particularly, the statements that BellSouth neither owned nor maintained the offending wire and that Mr. Richardson observed the wire’s attachment to cable equipment.

The opponents to the motion for summary judgment have offered no proof that the plaintiffs’ damages were in any way caused by the BellSouth pole. The allegation is that Officer Longo was thrown from his horse because of the condition of the wire, a wire that Mr. Richardson’s uncon-troverted affidavit ^establishes was neither owned nor maintained by BellSouth. BellSouth’s having produced sufficient evidence that plaintiffs will not be able to prove at trial that BellSouth owned or maintained the wire allegedly causing the damages sustained by the plaintiffs, the burden of proof shifted to the adverse parties to offer evidence that BellSouth maintained or owned the wire or was liable under any other theory of recovery. There is simply no evidence to that effect in the record. We find that the trial court correctly applied current summary judgment standards relating to sufficiency of evidence and burden of proof in arriving at the judgment from which the parties appealed.

In their second assignments of error, the plaintiffs and Cox contend that the trial court erred because both plaintiff, Officer Longo, and Cox showed the existence of genuine issues of material fact in dispute as to the ownership and custody of the wire.

Plaintiffs argue that BellSouth’s ownership of the pole makes it responsible for any attachments to the pole, citing Murphy v. Fidelity and Cas. Co. of New York, 165 So.2d 497 (La.App. 2 Cir.1964). We do not find that the decision supports the conclusions suggested by the plaintiffs. In that wrongful death suit arising out of decedent’s electrocution caused by contact with inadequately insulated or non-insulated wires, the surviving widow and son of the decedent sued the owner of the building in which the decedent’s electrocution occurred, and the owner of an adjoining building. The building owners’ insurer moved for summary judgment based on admitted facts showing that the offending electrical wiring was |innot used by, owned or in any way the responsibility of the building owners, but was owned and controlled by the owner of the adjoining building. The adjoining owner’s insurer filed a motion for summary judgment based on established facts that the adjoining owner had no knowledge of the existence of the wires, that he had no notice of any trouble with the wires prior to the accident, that they were located outside the insured’s control and were subject to the control of persons other than the adjoining owner. The survivors’ suit was predicated upon premises liability based upon the prior law of strict liability. The court found that the lethal wires were “permanently attached to and formed a part of the common wall between “ the two buildings and as such were immovables by their nature. The wires were under the ownership of and served the adjoining owner, but “by virtue of their attachment to the common wall were in the custody of’ the owner of the building in which decedent was injured. Thus, the court found liability attached both to the owner and to the possessor or custodian of the wire attached to the common wall. In the instant case, we are not faced with the old law of strict premises liability. There is no allegation that there was a defect in BellSouth’s pole of which it had knowledge and a reasonable opportunity to repair. See, La C.C. arts. 660 Acts 1977, No. 514, § 1, eff. Jan 1, 1978 as amended by Acts 1996,1st Ex.Sess., No. 1, § 1, eff. April 16, 1996 and 2317.1, as amended and added by Acts 1996, 1st Ex. Sess., No. 1, § 1, eff. April 16,1996.

|nNo adverse party having produced evidence tending to show that BellSouth had premises liability for the wire in question, the trial court correctly rejected this argument.

Plaintiffs argue further that the joint use agreement obliges each party to maintain the wires; however, the agreement specifically states that each party is responsible only for “its own attachments”, not for attachments placed by other parties (Article IV-C(2)).

In their third assignment of error, the plaintiffs contend that the trial court erred because genuine issues of material fact exist concerning the ultimate liability for damages.

The plaintiffs argue that the joint use agreement gives them a right to claim one-half of their damages against BellSouth, citing § XVII(C) of the agreement. However, that section is limited in its application to cases in which plaintiff has shown concurrent negligence. In the case at bar, there has been no showing of any type of negligence or basis for premises liability on BellSouth’s part. Absent some showing that BellSouth was negligent, we are compelled to find that the plaintiffs may not rely on § XVII (C) to support their claim.

In Armstead v. Central Louisiana Electric Company, Inc., 308 So.2d 870 (La.App. 3 Cir.1975), cited by the plaintiffs, there was evidence of concurrent negligence on the part of South Central Bell and the electric company, triggering application of the concurrent negligence provision in the joint use agreement. However, no adverse party submitted any evidence of such concurrent negligence 112in the case at bar, and the Richardson affidavit establishes without contradiction that the wire in question was neither owned nor maintained by BellSouth.

In Marcade v. City of New Orleans, 599 So.2d 901 (La.App. 4 Cir.1992), cited by the plaintiffs, the evidence showed that South Central Bell had “ownership and custody of the guy wire.” That salient fact differentiates Marcade from the case at bar.

Similarly, in Godfrey v. Boston Old Colony Insurance Company, 97-2569 (La.App. 4 Cir. 5/27/98), 718 So.2d 455, cited by the plaintiffs, we rejected summary judgment because the plaintiffs cause of action was based in part on evidence that it was the placement of the utility pole itself that created an unreasonable risk of harm to be decided at trial on the merits. In the case at bar, the argument is that the wire, and not the placement of the pole, created the hazard that caused damage to the plaintiffs. Absent proof that BellSouth owned or maintained the wire, or that the pole’s placement caused the plaintiffs’ injury, the Godfrey case is not controlling.

In their fourth assignment of error, the plaintiffs contend that the lower court erred because necessary and relevant discovery remains outstanding. The record reflects that the trial court continued the hearing on the motion for summary judgment until such time as plaintiffs were able to take Mr. Richardson’s deposition and obtain a copy of the joint use agreement. Absent an allegation that BellSouth has thwarted any specific attempt at discovery, or that there is pending [ iSopen discovery, we cannot conclude that adequate discovery has not been had. La.C.C.P. art. 966.

For the foregoing reasons, we amend the judgment of the trial court to provide that the dismissal of all claims against BellSouth is a dismissal with prejudice and affirm the judgment, as amended.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Although the parties have not raised the issue, we note that a trial court commits error by granting a dismissal without prejudice pursuant to the grant of a motion for summary judgment. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 492. Therefore, the judgment must be amended to provide that the dismissal is with prejudice.

      . On August 16, 2002, the trial court granted Entergy’s motion for summary judgment, dismissing all claims against Entergy by any party without prejudice.

      . LP & L became Entergy by succession of interest.

      . BellSouth’s trial counsel admitted at the hearing on its motion for summary judgment that the utility pole was a BellSouth pole.

      . In S. Pitre, The Pelican State Amends Summary Judgment, 43 LYLR 97, 115 (Spring 1997), the author suggests that the amendments to the codal provisions relating to the law of summary judgment overruled the Walker case.


source: Caselaw Access Project

author: I,AMY, Judge.

license: Public Domain

text:
    Dallas MAYNARD v. GREY WOLF DRILLING.
    No. 2004-431.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 2004.

      Frank A. Flynn, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, Grey Wolf Drilling.
    Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellee, Dallas Maynard.
    Patrick J. Hanna, Rabalais, Hanna & Hebert, Lafayette, LA, for Work Enterprises, Inc., appearing as Amicus Curiae.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD , Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   I,AMY, Judge.

The claimant filed a disputed compensation form alleging that his workers’ compensation indemnity benefits were imper-missibly reduced from those for temporary total disability to supplemental earnings benefits. He contends that the position relied upon by the employer for doing so was not appropriate employment under the indemnity benefits statute. The workers’ compensation judge found in favor of the claimant, returning him to temporary total disability status. Penalties and attorney’s fees were awarded for unrelated payment issues. The employer appeals. For the following reasons, the decision of the workers’ compensation judge is affirmed. Additional attorney’s fees are awarded for work performed on appeal.

Factual and Procedural Background

The claimant, Dallas Maynard, began receiving workers’ compensation benefits following a March 10, 1994 work-related accident while an employee of Grey Wolf Drilling Company. Mr. Maynard’s injuries resulted from having sustained an electrical shock while working as a derrick hand with the employer. Subsequent to the accident, Mr. Maynard’s course of treatment included an L5/S1 fusion in 1995 and, due to ongoing headaches, an occipital neurectomy in 1996. He has allegedly been left with neck and back pain and, in his disputed claim form, complains of undisclosed injuries to the brain. Entered into evidence at the trial on the matter were the depositions and records of Dr. John Martin, a pain management specialist, and Dr. James Blackburn, a psychiatrist. Mr. Maynard continued to receive treatment from both physicians at the time of their depositions. The record indicates that Mr. Maynard continued to take a myriad of medications for pain and anxiety. He further continued in his use of an implanted spinal cord stimulator to control his back pain, a practice Dr. Martin opined would likely continue for the remainder of his life.

| ?The instant matter arose in 2001, when the employer’s insurer, Gray Insurance Company, contracted with Work Enterprises, Inc. (hereinafter WE), to offer a period of training and possibly a subsequent offer of employment to the claimant. The record reflects that WE is a for-profit company which offers generally home-bound employment to those who are disabled. According to Stanford McNabb, who described himself as a stockholder in the business and who explained that he performs management and marketing functions with the company, WE offers a period of training to employers and insurers for their disabled workers and perhaps, ultimately, a job offer.

The initial ten month period of the position, described in the record as a training period,, offers homebound work tailored to meet an employee’s individual disabilities. During the initial period, there is no quota in the production of the company’s products, ie., candles, bath salts, Mardi Gras confetti, etc. While performing these tasks, the employee is assured thirty hours per week of work, earning $5.15 per hour. WE provides the employee’s workers’ compensation coverage and Social Security payments. The position with WE is subsidized by several payments from the employer, totaling $13,000. These payments will be detailed in our discussion below.

In the present case, the claimant’s indemnity benefits were reduced to Supplemental Earnings Benefits (SEBs) after the offer of the position in the paid training program was refused by the claimant. The claimant filed the disputed claim form instituting this matter in March 2001. He sought a return to full indemnity benefits along with penalties and attorney’s fees.

Following a hearing, the workers’ compensation judge found in favor of the |3claimant, returning Mr. Maynard to full indemnity benefits. In oral reasons for ruling, the workers’ compensation judge concluded that the position offered by WE was not “employment” sufficient to serve as a basis for reduction of benefits. Penalties in the amount of $6,000 and attorney’s fees in the amount of $12,000 were also awarded.

The employer appeals, assigning the following as error:

Assignment of Error I
The trial court committed manifest error when it faded to find the plaintiffiappel-lee was capable of employment under La.R.S. 23:1221(l)(c) and 23:1221(3)(a) when, in fact, the trial record establishes a viable job offer was made by WE, Inc. within the appellee’s treating physicians’ restrictions.
Assignment of Error II
The trial court committed mainifest [sic] error when it failed to find the WE, Inc. employment constituted a reasonable placement of a substantially impaired employee, who had reached a medical plateau, into a viable employment opportunity pursuant to the guidelines of La. R.S. 23:1226 and La.R.S. 23:1221(3)(a).
Assignment of Error III
The trial court committed manifest error when it found the Giselair Rehabilitation specialist’s work constituted “sham rehabilitation” when her efforts, under the circumstances, were fully in accordance with the letter and spirit of the rehabilitation statute — La.R.S. 23:1226.
Assignment of Error IV
The trial court committed manifest error when it found the appellants, Grey Wolf Drilling Company and The Gray Insurance Company, were obligated to pay $6000 in penalties and $12000 in attorney fees when at all times Grey Wolf Drilling Company and the Gray Insurance Company acted reasonably in its handling of this case.

(Use of uppercase, underlined text omitted.)

WE, has filed an amicus curiae brief with this court, asserting that the workers’ compensation judge’s determination, if not reversed, will be detrimental to its program and its workers.

|4Discussion

Classification of Benefits

Discussing its first three assignments of error collectively, the employer contends that the workers’ compensation judge erred in finding the use of the WE position to be an insufficient basis for reducing the benefits to those of SEBs. In particular, the employer points to the fact that a paying position was, in fact, offered to the claimant and, furthermore, the job descriptions were approved by the claimant’s treating physicians. These factors, it contends, indicate that a reduction is required pursuant to the statutory requirements for temporary total disability benefits (hereinafter TTD benefits) and those for supplemental earnings benefits. The claimant contends the position offered is not employment, but merely a vehicle by which employers/insurers might reduce their workers’ compensation liability exposure. The claimant points to the statutory limit on the length of availability of SEBs.

When a claimant not engaged in employment seeks to establish entitlement to temporary total benefits under La.R.S. 23:1221(1), Subparagraph (C) of La.R.S. |s23:1221(l) sets forth the burden of proof required of a claimant seeking to establish entitlement to TTD benefits, indicating that TTD benefits are appropriate where an employee “proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment. ...”

With regard to SEBs, La.R.S. 23:1221(3) sets forth a framework indicating | r,that a claimant must first demonstrate by a preponderance of the evidence that he or she is unable to earn 90% of his or her pre-injury wage due to the work-related injury. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161. If this initial burden is satisfied by the claimant, an employer attempting to defeat the claim for SEBs or establish the claimant’s earning capacity, is required to prove, also by a preponderance of the evidence, “that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region.” Id. at 1166, citing La.R.S. 23:1221(3)(c)(i).

In oral reasons for ruling, the workers’ compensation judge concluded that the position offered by AYE could not be used by the employer to reduce Mr. Maynard’s benefits to SEBs. She noted that, although La.R.S. 23:1221(1) focuses upon the claimant’s ability to physically engage in any employment, the position offered by WE was not sufficient “employment” for TTD purposes.

|7On appeal, a workers’ compensation judge’s factual determinations are subject to the manifest error or clearly wrong standard of review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In its application of this standard, the reviewing court is not to consider whether the workers’ compensation judge was correct or incorrect, but whether the determination was a reasonable one. Id. This determination must be made in light of the record as a whole. Id. Our review of the record reveals no such manifest error in the workers’ compensation judge’s determination that the reduction of indemnity benefits was improper.

First, the workers’ compensation judge was made aware of the claimant’s physical condition and the related hindrances to his ability to function in the workplace. Dr. Martin, Mr. Maynard’s treating physician in the field of pain management, explained in his deposition that he began treating Mr. Maynard for leg, back, and neck pain upon referral from an orthopedic surgeon. Dr. Martin reported that both objective and subjective findings led to nerve block injections and eventually, the implantation of a spinal stimulator. As of the date of his deposition, Mr. Maynard continued to treat with him and continued in his complaints and use of a number of medications. Dr. Martin reported that Mr. Maynard was periodically experiencing loss of consciousness, which led to a recommendation that he not continue to drive.

IsAlthough Dr. Martin explained that he approved the job descriptions provided by WE, upon questioning by counsel for the employer/insurer, Dr. Martin further explained generally about Mr. Maynard’s future in a work-place environment:

Q And insofar as other work other than the jobs that you approved, do you think that there’s potential for him to do more — or other jobs in the sedentary-to-light-duty activities?
A No. I think he’s going to be chronically restricted to low-level-activity positions, and I think he’s also going to be limited based on traveling potential. It’s recommended by Dr. Domingue and myself that he not drive to work because of the blackout episodes that have happened in the past.
Q Now, assuming that he has some driving ability down the road, do you think that, from a pain management standpoint, that there would be an increased opportunity for other types of sedentary or light-duty employment for the patient?
A Yes, but I think those are probably going to be evaluated individually for him and match—
Q The only jobs that you felt that he’s presently capable of doing that you’ve been provided detailed descriptions for are those three job descriptions that you actually signed off on in Exhibit Number 4. Is that—
A Yes.

Upon further questioning by counsel for the claimant, Dr. Martin further explained:

Q Okay. Apparently, in reviewing the documents which are Exhibit Number 4, they do state that “Production standards will not be enforced until the training program has been completed,” which, I understand, was a ten-month program. So, in other words, he didn’t have to produce anything more than he felt like producing.
That was your understanding?
A Yes.
Q Was that a consideration, Doctor, in your signing off on the job, that he did not have to make a production standard? ■
| qA I didn’t know that he had a standard amount that he had to produce.
Q Okay.
A I’m not sure how that would be — or how much it would be.
Q So would your opinion change if he were forced to meet a production standard, or could it change.
A It could change.

When asked in his deposition about whether he continued to feel that the claimant could perform the job descriptions he approved with WE, he explained that he felt Imthe claimant would be able to do so from a pain management standpoint.

The claimant’s treating psychiatrist, Dr. Blackburn explained in his deposition that although he approved the positions offered, he had since become reluctant to approve positions with WE due to problems other patients had experienced with those positions. With regard to the claimant’s ability to work in general, Dr. Blackburn testified:

Q Would it be a job that would be something that, for instance, he wouldn’t have to make determinations as to how he does a job, something that’s kind of structured so he doesn’t have to make decisions himself?
A Yeah. I don’t think he’s — in spite of his improvement academically, I don’t think he’s capable of making good decisions. I don’t believe, for example, that if, in fact, it happened that he would benefit at all from going to a three-week course on how to manage a business at home because he’s not able to put together the kind of thinking that’s necessary to do that. Maybe with the aid of his wife, they might do some home work business, but my impression of Dallas is functioning in the workplace he’s going to need somebody to supervise him or somebody to lay the job out and say this is what it’s going to be. He has had the ongoing illusion or fantasy that he’ll become so Incomputer literate and accomplished that he’ll just do some marketable process with the computer at home. I have no reason to believe that’s even vaguely like that.

Although the workers’ compensation judge was aware of the physicians’ approval, the record also supplies evidence of the claimant’s impaired condition and difficulty in undertaking work generally. While the positions were initially approved, the workers’ compensation judge was not required to find that the offered positions are reflective of a claimant’s ability to perform work. The record also offers evidence indicating that the position offered is not reflective of positions available in the job market.

Stanford McNabb of WE stated that “[t]he primary function and mission of Work Enterprises is to provide re-training and re-employment to the population of people who are not otherwise served.” He explained during the initial ten-month training period the employee is guaranteed that they will not be laid off and will be paid $5.15 per hour for up to thirty hours per week. This is true, even though there are no set production standards for an individual during this training period. Rather, due to ADA guidelines, the production standards during the training period are tailored to participants’ abilities. According to Jack Arceneaux, former State Director for WE, no participant was ever terminated due to an inability to meet these adjusted production standards during the training period. However, according to Mr. McNabb, the worker may later be fired for not working up to his or her capability. The evidence indicates that, even with a claimant’s disabilities, the job and associated production standards would be tailored to fit that individual, at least during the initial ten-month training period. Except for very limited circumstances would the approach ever exclude anyone from returning to work at a position like the one offered.

I^The record also reflects that the program is a subsidized one in that the profits from products manufactured and sold by the company are insufficient to make the business profitable. Mr. McNabb explained at the hearing that the business is marketed to insurance companies with a focus on the savings available to these companies through use of the program. For those companies interested in using the companies for their disabled employees, a series of payments is due. According to Jack Arceneaux, a former State Director with WE, the payment schedule required of the employer/insurer for each employee of WE is as follows: $3,000 for initial involvement and preparation/presentation of job analyses; $3,000 after approval of the job analyses by the employee’s physician; $3,000 thirty days after the employee accepts the offer and commences work; $3,000 sixty days after the employee commences work; and, finally, $1,000 ninety days after the employee commences work. According to Larry Foreman, an adjuster for Gray Insurance Company, $6,000 was paid to WE for the time period up to the offer that was ultimately rejected by Mr. Maynard.

Without commenting on whether the program offered to Mr. Maynard would constitute adequate rehabilitation, a question not before the court, we find no manifest error in the conclusion that the offered positions were not “employment” within the terms of La.R.S. 23:1221. Although the employer contends that, in Kaiser v. Western-Southern Ins. Co., 01-1393 (La.App. 5 Cir. 5/15/02), 821 So.2d 52, the hafifth circuit found employment offered by WE meets the statutory definition of employment, we do not find the ease instructive in the instant matter. Rather, in Kaiser, the fifth circuit reviewed a workers’ compensation judge’s conclusion that the claimant was not in fact permanently totally disabled. The applicable deferential standards of review were described by the court throughout the opinion. In the present case, we are reviewing a workers’ compensation judge’s determination to the contrary, i.e., that Mr. Maynard is totally disabled. Furthermore, in Kaiser, although a WE position was offered, so were several other, sedentary positions. Finally, there were varying physicians’ opinions as to whether the claimant in Kaiser could return to work. In the present case, we have no such indication from the physicians. To the contrary, the treating physicians were specific that the claimant’s ability to work is extremely limited and that it will continue to be in the future.

In short, the record supports a finding that the offered position is not reflective of a claimant’s ability to engage in employment. Thus, we find no manifest error in the workers’ compensation judge’s determination to return the claimant to full benefits.

Rehabilitation

Next, the employer questions the workers’ compensation judge’s conclusion that vocational rehabilitation efforts expended prior to the arrangement with WE were inadequate under La.R.S. 23:1226. In ruling, the workers’ compensation judge concluded that the efforts of the vocational rehabilitation counselor were limited to making contact with WE.

Louisiana Revised Statutes 23:1226 provides, in part:

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to 114wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.
B. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant’s education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not more than one year).
(g) Self-employment.
(2) Whenever possible, employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.
(3)(a) The employer shall be responsible for the selection of a vocational counselor to evaluate and assist the employee in his job placement or vocational training. ...

In the present case, the workers’ compensation insurer contacted Jody Dupre’ a vocational rehabilitation consultant. Ms. Dupre’ explained in her deposition that she did not provide vocational rehabilitation to Mr. Maynard, but “was providing limited services per request of the carrier[,]” who she identified as Larry Foreman of Gray Insurance. Ms. Dupre’ stated that she was asked to “contact Mr. Maynard and meet with him. I was also asked to contact Mr. Jack Arceneaux of Work Enterprises and obtain some job analyses to be presented to both doctors, Dr. John Martin and Dr. James Blackburn.” She denied being contracted to provide any further services. The remainder of her deposition testimony confirms that these were the only actions she completed with regard to Mr. Maynard’s file. Finally, Mr. Maynard’s testimony regarding his contact with Ms. Dupre’ is not clear, but confirms the limited nature of |15their relationship.

Given evidence of her limited services, it is apparent that opportunities for a return to some type of position and the availability of those positions, as envisioned by the preferential listing of La.R.S. 23:1226, were not explored in sufficient fashion to satisfy the burden placed upon the employer in this case.

Penalties and Attorney’s Fees

Finally, the employer contests the imposition of penalties and attorney’s fees in this matter. Without addressing the specific basis for each of the three separate $2,000 penalties, the employer contends that generally the matter was sufficiently contested so as not to warrant penalties and attorney’s fees.

At the time of the alleged violations at issue, La.R.S. 23:1201 provided, in part:

A. Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident; however, when the employee is not living at the place where the wages were paid, or is absent therefrom, such payments shall be made by mail, upon the employee giving to the employer a sufficient mailing address. However, a longer interval, not to exceed one month, may be substituted by agreement without approval of the director. An interval of more than one month must be approved by the director.
B. The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death on which date all such compensation then due shall be paid.
E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all | ^compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim....

The workers’ compensation judge awarded three separate penalties of $2,000 each. First, penalties were awarded to provide medical benefits in that a disco-gram recommended by Mr. Maynard’s orthopedic surgeon was denied. At the hearing, Mr. Foreman, the insurance claims adjuster, testified simply that the discogram procedure was regularly denied by the agency. In his deposition, Mr. Foreman denied having obtained a second opinion as to the necessity of the disco-gram requested by the orthopedic surgeon. In finding a penalty appropriate, the workers’ compensation judge observed that no evidence was offered as to the allegedly controversial nature of the procedure. We find no abuse of discretion in the workers’ compensation judge’s award of penalties in this regard.

Next, the workers’ compensation judge awarded $2,000 for failure to appropriately calculate Mr. Maynard’s average weekly wage. Testimony in the record indicates that at the time the wage was calculated, it excluded certain fringe benefits, including health insurance benefits provided to Mr. Maynard’s family. We observe that the employer did not raise on appeal issues related to the recalculation of the average weekly wage, a final determination. As the workers’ compensation payments made to Mr. Maynard did not include the benefits found appropriate by the workers’ compensation judge, the $2,000 penalty was not an abuse of discretion.

Finally, a $2,000 penalty was awarded for failure to reimburse Mr. Maynard for several prescription medications purchased in 2001. Although the receipts from the purchases were entered into evidence, there is no corresponding evidence in the payment history indicating that the sums were reimbursed. Again, we find no abuse of 117discretion in the award of penalties in this regard.

Turning to the issue of attorney’s fees, reference to La.R.S. 23:1201(F) indicates the availability of attorney’s fees for failure to pay claims due under La.R.S. 23:1201(A)-(E). In this regard, the workers’ compensation judge awarded $12,000 in attorney’s fees to Mr. Maynard’s counsel. The employer questions the award, stating that such a fee is inappropriate given the contested and ongoing disputes involved in this matter. Importantly, we note that the penalties and attorney’s fees awarded were not related to the central issue of whether benefits were appropriately reduced. Rather, the penalties were awarded for the above violations. Again, the record reveals no abuse of discretion in the award of those penalties. Accordingly, the determination to award the attorney’s fee in this regard was not an abuse of discretion.

Claimant’s Answer

The claimant has answered the appeal, seeking additional attorney’s fees for work performed on appeal. We find such an award required under the circumstances and in light of La.R.S. 23:1201(F). Having considered these proceedings, along with | ,sthe claimant’s brief filed with this court, we award an additional $3,000 for attorney’s fees on appeal.

DECREE

For the foregoing reasons, the decision of the Office of Workers’ Compensation is affirmed. Additional attorney’s fees in the amount of $3,000 are awarded for work performed on appeal. All costs of this matter are assigned to the appellants, Grey Wolf Drilling and The Gray Insurance Company.

AFFIRMED. ADDITIONAL ATTORNEY’S FEES AWARDED.

      . Although both the employer and insurer are appellants, they will be referred to throughout this review as the "employer.”

      . La.R.S. 23:1221(1) provides, in pertinent part:
      (1) Temporary total.
      (a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.
      (b) For purposes of Subparagraph (l)(a) of this Paragraph, compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in pain.
      (c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
      (d)An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required.

      . La.R.S. 23:1221(3) provides, in relevant part:
      (3) Supplemental earnings benefits.
      (a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis....
      (b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain.
      (c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region.
      (ii) For purposes of Subsubparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.
      (d)The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
      (i) As of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period supplemental earnings benefits have been payable during at least thirteen consecutive weeks; or
      (ii) After receipt of a maximum of five hundred twenty weeks of benefits, provided that for any week during which the employee is paid any compensation under this Paragraph, the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this Paragraph; however, for any week during which the employee is paid no supplemental earnings benefits, the employer shall not be entitled to a reduction against the maximum number of weeks payable under this Paragraph; or
      (iii) When the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.

      . In reasons for ruling, the workers’ compensation judge referenced Comeaux v. City of Crowley, 01-0032 (La.7/3/01), 793 So.2d 1215, a case in which the Louisiana Supreme Court considered what might constitute the phrase “physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment” as used in La.R.S. 23:1221(2), that portion of the statute relating to permanent total disability. In that case, the court considered not only a claimant’s physical condition in deciding whether an injured worker was disabled, but also found that consideration of a claimant's ability or inability to be retrained/re-educated for future employment was appropriate.

      . The Job Analysis Form submitted to the physicians for their approval includes descriptions for the positions of “Bath Salt Cup, Bottle and Pouch Assembler, Homebound," "Confetti Cup + Bag Assembler, Homebound,” and "Item Cutter (Scissors), Homebound.” For illustration purposes, the Job Analysis form for the "Confetti Cup & Bag Assembler, Homebound,” provides, in part:
      Job Description: The employee will make cups of confetti using nylon netting squares (tulle) and small plastic champagne cups or bags of confetti using small plastic bags.
      Confetti cups — The employee will spread a small towel onto a work surface of his or her choosing and then place one empty champagne cup on the center of the towel. The employee will then use a small measuring cup to scoop confetti out of a small container and carefully pour it into the empty champagne cup to the proper level. The employee will then place a nylon netting square on top of the filled cup. The nylon netting will be gathered tightly around the stem of the champagne cup and secured with a strip of pre-cut ribbon, which will be tied in a bow. The confetti cup will then be inspected by the employee so that its appearance and condition meet the employer's quality standards. The finished cup will be placed into a box. Once the box is filled with 16 confetti cups, its cover will be replaced and the box placed to the side. The employee will telephone the courier to schedule a pick up of the completed boxes. When the courier arrives, the employee will submit a packing slip (that the employee fills out and signs) to document transfer of the boxes.
      Confetti bags — The employee will spread a small towel onto a work surface of his or her choosing and then place one empty plastic bag on the enter of the towel. The employee will then use a small measuring cup to scoop confetti out of a small container and carefully pour it into the empty plastic bag until a predetermined weight is reached. The plastic bag will be secured with a label and staples. The confetti bag will then be inspected by the employee so that its appearance and condition meet the employer's quality standards. The finished bag will be placed into a box. Once the box is filled with confetti bags, tire box will be placed to the side. The employee will telephone the courier to schedule a pick up of the box. When the courier arrives, the employee will submit a packing slip (that the employee fills out and signs) to document transfer of the box.
      The employee is expected to interact with fellow employees and management with a cheerful, pleasant, and positive attitude.
      Job Modification Options/Comments: The employee may self regulate the amount of time spent doing work activities at one time or during the day. This allows for the employee to stretch, move about, lie down, take meal breaks or work breaks at own discretion. The employer will make every effort to accommodate the needs of an individual employee based on physical limitations or restrictions. The production standards will not be enforced until the training program has been completed. Note: This paragraph may be modified in order to include modifications or accommodations specific to an
        employee's unique physical limitation or restrictions.
      Estimated Physical Requirements:
      Sitting: At one time: 15-20 minutes Total during day: 5-6 hours
      Standing: At one time: NR Total during day: NR
      Walking: At one time: NR Total during day: NR
      Note: The employee can stand or walk if he or she desires to be comfortable and may self regulate the amount of time spent doing a work activity at one time or during the day.
      Lifting: Maximum Pounds-Frequently 0-2 pounds Occasionally: up to 10 pounds
      Carrying: Maximum Pounds-Frequently 0-2 pounds Occasionally: up to 10 pounds

      . In Mr. McNabb's testimony he explained that:
      [0]ne of the benefits to the program is that everyone who's involved in the program benefits. For example, the injured worker, if he comes to work for us, ends up making Fifty-one Dollars and Forty-four Cents more per week than he would just strictly on workers' comp. The insurance carrier ends up paying less money over a long time in disability benefits. Our society benefits, because we have — we are creating productive people who become tax payers. So, it’s a situation where everyone wins.

      . The workers' compensation judge referenced the failure to provide appropriate vocational rehabilitation as a possible basis for awarding attorney's fees. Although the supreme court has found attorney’s fees appropriate in cases involving an improper discontinuation of vocational rehabilitation, see Haynes v. Williams Fence and Aluminum, 02-442 (La.4/21/03), 851 So.2d 917 (wherein the supreme court explained that vocational rehabilitation is a "claim due” under then existing La.R.S. 23:1201.2), the supreme court subsequently found that an award of penalties or attorney's fees for failure to provide rehabilitation is not available under La.R.S. 23:1201(F). See Chelette v. Riverwood Intern. USA, Inc., 03-1483 (La. 10/17/03), 858 So.2d 412.
      Note, however, that subsequent to Chelette, La.R.S. 23:1201.2 was repealed pursuant to 2003 La.Acts No. 1204, § 2. Pursuant to the same Act, La.R.S. 23:1201 was amended to provide for penalties and attorney’s fees for failure to pay "claims due.” The subsequent amendment is inapplicable to the present case, however, as the law in effect at the time of the violation is the law applicable to the issue of penalties and attorney's fees. See Skipper v. Acadian Oaks Hosp., 00-67 (La.App. 3 Cir. 5/3/00), 762 So.2d 122. Thus, although we have concluded that the award of attorney's fees for violations of La.R.S. 23:1201 was not an abuse of discretion, the failure to provide appropriate rehabilitation is not one of those which we have considered to be a suitable basis for the award.


author: WALLER, Justice,

text:
    Anthony McGRUDER v. STATE of Mississippi.
    Nos. 2001-CT-01542-SCT, 2003-TS-00689.
    Supreme Court of Mississippi.
    Sept. 11, 2003.
    Belinda J. Stevens, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   WALLER, Justice,

for the Court.

¶ 1. We granted Anthony McGruder’s petition for writ of certiorari to review the judgment of the Court of Appeals which dismissed McGruder’s direct appeal of his criminal conviction as untimely filed. McGruder v. State, 835 So.2d 104 (Miss.Ct. App.2003), cert. granted, 847 So.2d 866 (Miss.2003). Finding that the Court of Appeals should have rendered a decision on this fully briefed appeal, we reverse the Court of Appeals’ judgment and remand the case to the Court of Appeals for a decision on the merits.

FACTS

¶ 2. The following factual background was recited in the Court of Appeals’ opinion. On June 23, 1998, a fire was started at 617 Grady Avenue in Yazoo City, Mississippi. Firefighters discovered two bodies in the house. A subsequent investigation revealed the bodies to be those of Daisy Shinal and Willy Dixon, an elderly brother and sister who lived in the house along with .Anthony McGruder, Shinal’s grandson. Autopsies revealed that Dixon and Shinal had died days before the fire. Shinal’s cause of death was strangulation, and Dixon died of blunt force trauma to his head. McGruder became the primary suspect in the police’s investigation and later confessed to having a physical altercation with Dixon and Shinal. At trial, State Deputy Fire Marshall Carl Rayfield and Yazoo City Fire Marshall James Jackson testified that piles of clothes had been placed over Shinal and Dixon and set on fire. Paint thinner was used as an acceler-ant. There were no signs of forced entry into the house. McGruder was found guilty of the murders and of arson on November 29, 2000. Defense counsel’s first post-trial filing was a belated motion for JNOV filed on March 15, 2001. McGruder filed a pro se motion to appoint new counsel on July 11, 2001. The circuit court appointed new appellate counsel on September 7, 2001. In the order appointing new counsel, the circuit court specifically authorized new counsel to “determine the necessity for an appeal of Defendant’s case and to so file an appeal after consultation and assessment with the Defendant.” New counsel thereafter promptly filed a motion for JNOV which was denied on September 19, 2001. A notice of appeal was filed by new counsel on September 26, 2001. The appeal proceeded in normal course with briefs filed by each side. The Court of Appeals thereafter rendered an opinion on January 21, 2003, dismissing the appeal as untimely.

¶ 3. Adding some confusion to the proceedings were continued filings by McGru-der. McGruder filed a pro se motion for out-of-time appeal on November 19, 2001, which was dismissed on December 20, 2001.

DISCUSSION

¶ 4. M.R.A.P. 4(a) and (d) require that an appeal be filed within thirty days after the trial court has ruled on post-trial motions. The rules makes provision for an extension to be granted in the trial court upon motion filed within thirty days after the expiration of the time otherwise allowed. No provision is made authorizing the trial court, sua sponte or on motion filed in that court, to thereafter grant an out-of-time appeal. Whether a trial court has authority to remedy the failure to file timely a notice after the time set by the rules for filing a notice of appeal had expired is doubtful. Coleman v. State, 804 So.2d 1032, 1037 (Miss.2002). However, we may grant an out-of-time appeal “where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.” Jones v. State, 355 So.2d 89, 90 (Miss.1978). We may suspend Rules 2 and 4 “when justice demands” to allow an out-of-time appeal in criminal cases. Fair v. State, 571 So.2d 965, 966 (Miss.1990).

¶ 5. Here, McGruder has done nothing to delay the perfection of his appeal. McGruder’s trial counsel simply failed to file a JNOV until four months after the jury verdict and sentence were entered. Once appointed, new counsel was timely in all post-trial filings and the perfection of the appeal. McGruder’s appeal was untimely filed through no fault of his own. Justice demands that the out-of-time appeal filed by McGruder’s new counsel be allowed and that this case should be considered on the merits. See Fair v. State, 571 So.2d at 967.

¶ 6. McGruder’s pro se filings require some discussion. The text of the circuit court’s order of December 20, 2001, which denied the McGruder’s motion of November 19, 2001, for out-of-time appeal was just that. The order disposed of McGru-der’s pro se filings only and did not affect the appeal which was filed by new counsel, which the trial court had specifically authorized, and which had already been filed.

CONCLUSION

¶ 7. We reverse the judgment of the Court of Appeals dismissing this appeal and remand the matter back to the Court of Appeals for consideration and a decision on the merits of the case.

¶ 8. REVERSED AND REMANDED TO THE COURT OF APPEALS.

PITTMAN, C.J., SMITH, P.J., COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J. AND EASLEY, J„ DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J„ NOT PARTICIPATING.


author: /s/William L. Waller, Jr.

text:
    Bethany WOOTEN, a Minor, by and through Her Parents, Next Friends, and Guardians, Betty Wooten and Charles Wooten, Appellant v. MISSISSIPPI FARM BUREAU INSURANCE COMPANY, Appellee.
    No. 2003-CA-02457-SCT.
    Supreme Court of Mississippi.
    Aug. 26, 2004.
    Rehearing Denied Oct. 21, 2004.
   ORDER

¶ 1. This cause comes on this day on the sua sponte motion of the Court to dismiss this appeal without prejudice, and the Court, having considered the same, finds as follows:

¶ 2. 1. Appellant Bethany Wooten appeals from an order of the Marion County Chancery Court which denied Wooten’s motion for summary judgment as a matter of law in Wooten’s claim for damages under her insurance contract with Appellee Mississippi Farm Bureau Insurance Company.

¶ 3. 2. In light of the fact that Wooten’s claim for damages remained pending in the trial court, the trial court’s order denying Wooten’s motion for summary judgment is interlocutory and, therefore, not appealable.

¶ 4. 3. Mississippi Rule of Appellate Procedure 5 provides the appropriate procedure for seeking permission to appeal interlocutory orders.

¶ 5. 4. Wooten did not act in compliance with the Rule in that she never petitioned the trial court or this Court for permission to bring a Rule 5 interlocutory appeal, and the question presented in this case does not compel the Court’s suspension of the procedural requirements of Rule 5(a) to allow an interlocutory appeal.

¶ 6. For these reasons, the Court finds that this appeal should be dismissed for lack of an appealable order.

¶ 7. IT IS, THEREFORE, ORDERED that this appeal is dismissed without prejudice.

¶ 8. SO ORDERED.

/s/William L. Waller, Jr.

WILLIAM L. WALLER, JR., PRESIDING JUSTICE FOR THE COURT

EASLEY, J., CONCURS IN RESULT ONLY. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.


author: THOMAS, J., IRVING, J.,

text:
    Michael BATES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00953-COA.
    Court of Appeals of Mississippi.
    May 11, 2004.
    Rehearing Denied Aug. 3, 2004.
    Certiorari Denied Nov. 10, 2004.

      Chokwe Lumumba, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Michael Bates was convicted in the Circuit Court of Hinds County of possession of cocaine and was sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections. Aggrieved, he asserts the following issues on appeal:

I. THE APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.

II. THE TRIAL COURT ERRED WHEN IT SUBMITTED THE WHOLE VIDEOTAPE INTO EVIDENCE.

FACTS

¶ 2. Shortly before 4 a.m. on the morning of December 13, 1998, Officer Ricky Richardson conducted a traffic stop on a vehicle for running a red light. Officer Richardson began recording on the camera in his cruiser as he pulled up behind the vehicle. The driver of the vehicle, Donald Hickman, exited the car and approached the police cruiser. Richardson informed Hickman why he had been stopped and placed him in the back seat of the police car. Richardson then noticed movement in the vehicle Hickman had been driving. Richardson approached the vehicle and looked into the driver’s side window with his flashlight. According to Richardson, he saw Michael Bates, the passenger in the vehicle, trying to get a cellophane-wrapped package out of a black bag and hide it under the front seat. Richardson returned to his vehicle and called for backup before removing Bates from the vehicle and placing him in the back of the police car.

¶3. After placing Bates in his cruiser, Richardson searched the vehicle and seized a cellophane-wrapped package from underneath the front passenger seat which was later determined to contain a little more than two pounds of cocaine. Other officers arrived and obtained a black bag, a handgun, and other miscellaneous items from the vehicle which had been occupied by Hickman and Bates. Much of what transpired was captured on video by the camera in Richardson’s cruiser.

¶ 4. Bates was charged with possession of more than thirty grams of cocaine. He was indicted for the offense on February 12, 1999, approximately sixty-one days after his arrest. Bates was arraigned on December 14, 1999. The first trial was set to occur on October 12, 1999, approximately 242 days after indictment. Hickman moved for a continuance which was granted by the trial court. Bates did not object. Trial was again set for December 2, 2000. Hickman again moved for a continuance which was granted by the trial court. Again Bates did not object. Up until December 6, 1999, Bates was represented by the Hinds County Public Defender’s Office. After that date, Bates was represented by his present counsel. Trial was set for February 5, 2000. Hickman once again moved for and obtained a continuance, and again Bates made no objection or demand for trial. On June 13, 2000, Bates moved to dismiss the indictment on the ground that his constitutional rights to a speedy trial were violated. The trial court denied Bates’ motion on September 25, 2000, and trial commenced two days later on September 27, 2000.

¶ 5. At trial, the evidence presented against Bates consisted of the testimony of Officer Richardson, along with the physical items seized at the time of Bates’ arrest, and portions of the videotape which were allowed into evidence along with Richardson’s testimony. Bates did not testify in his own defense. Bates objected to and the Court sustained admitting parts of the videotape on grounds that it showed other crimes or bad acts including a search of Bates in which Bates acknowledged possession of a small amount of cocaine found in the pocket of his jacket. During jury deliberations, the jury requested to be allowed to review the videotape again. The defense requested that a redacted copy of the videotape be given to the jurors. The State requested that a bailiff be given the time marking the admissible portion of the video and have the bailiff stop the tape at that point. Over an objection by the defense, the trial court allowed the jury to review the videotape, apparently with the bailiff having control as requested by the State and with an instruction not to view past a certain point.

¶ 6. Shortly after viewing the videotape, the jury returned with a guilty verdict. Bates moved for a judgement notwithstanding the verdict or, in the alternative, a new trial, claiming that by allowing the jurors to watch the videotape the court had submitted extraneous prejudicial information. In response to Bates’ claim, the State submitted the affidavits of two jurors which stated that the jury did not watch the videotape past the point in time at which the package of cocaine was retrieved from the car, much earlier than the point objected to by Bates. The trial court denied Bates’ motions. Bates then perfected an appeal to this Court.

ANALYSIS

I. WAS THE APPELLANT DENIED HIS RIGHT TO A SPEEDY TRIAL?

¶ 7. Bates asserts that he was denied his constitutional right to a speedy trial but does not advance a statutory claim under Mississippi Code Annotated Section 99-17-1 (Rev.2000). Bates was arrested on December 13, 1998, but was not tried until September 27, 2000. Bates made a motion to dismiss the indictment on this account on June 13, 2000, which was denied by the trial court on September 25. Trial commenced two days later.

¶ 8. The time between arrest and trial amounts to 654 days, and the time between arrest and the filing of the motion to dismiss on account of violation of the right to a speedy trial was 548 days. Both being well in excess of eight months, the delay is presumptively prejudicial to the accused and is sufficient to require consideration of the factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Skaggs v. State, 676 So.2d 897, 900 (Miss.1996). These factors are (1) the length of delay, (2) the reasons for the delay, (3) assertion of the right to a speedy trial, and (4) prejudice to the defense. Herring v. State, 691 So.2d 948, 955 (Miss.1997) (citing Barker, 407 U.S. at 529, 92 S.Ct. 2182).

1. Length of Delay

¶ 9. As previously stated, the considerable delay of 654 days is a strong indication that there may have been a violation of Bates’ constitutional right to a speedy trial. This factor weighs in Bates’ favor.

2. Reasons for delay

¶ 10. Bates asserts that there are no valid reasons that the State could present to the trial court for the delay. The prosecution, however, pointed out several reasons which were uncontested by Bates. Hickman and Bates were indicted jointly for the crime at bar and neither moved for severance. An initial trial date was set for October 12, 1999, well under a year after indictment, but was moved due to a continuance requested by Bates’ co-defendant Hickman. Bates did not object, move for severance, or demand trial. Trial was again set for December 2, 1999, but was moved again due to a continuance by Hickman. Again Bates did not object, move for severance, or demand trial. Bates was represented until December 6,1999, by the Hinds County Public Defender’s Office. After that date, he was represented by his present counsel. Trial was set once again for February 5, 2000, and again Hickman was granted a continuance.

¶ 11. The period of time between arrest and indictment, sixty-one days, counts against the State but is reasonable. Collins v. State, 817 So.2d 644, 653 (Miss.Ct.App.2002). Bates asserts that the continuances are not attributable to him -and should not count against him. In Flores v. State, 574 So.2d 1314 (Miss. 1990), the Mississippi Supreme Court did hold that continuances granted one co-defendant would not be weighed against another co-defendant in that case who had not also moved for the continuances. However, the court held that the continuances were not granted for “good cause.” Flores, 574 So.2d at 1321. Also, Flores can be distinguished from the case at bar because one of the co-defendant’s in Flores moved for severance within a month of being indicted. Flores, at 1317. Generally, if a continuance is granted to a co-defendant for good cause, it operates as a good cause delay as to a jointly charged defendant. Horton v. State, 726 So.2d 238, 246(¶ 32) (Miss.Ct.App.1998). Since Bates did not move for severance, demand a speedy trial, object to the continuances granted, nor provide any evidence that the continuances were not granted for “good cause,” the time must count against him.

¶ 12. Between the last continuance granted and the actual trial date was a period of 235 days. This period was caused by various discovery and other motions including those filed by Bates. Some of those required a hearing and consideration by the trial court, such as his motion to dismiss the indictment for lack of a speedy trial on June 13, 2000, 106 days before trial began. “It is well-settled law in the State of Mississippi that when most of the delay in a case is attributable to the many continuances and changing of attorneys by the defense, this factor will weigh against the defense in the balancing test.” Sharp v. State, 786 So.2d 372, 380-81 (¶ 17) (Miss.Ct.App.2001) (citing Elder v. State, 750 So.2d 540, 543-44 (Miss.Ct.App.1999)). This factor weighs against Bates.

8. Demand for trial

¶ 13. There is no evidence that Bates ever demanded trial. He only moved to dismiss the indictment against him on account of the alleged denial of his right to a speedy trial, but the motion did not constitute a demand. Perry v. State, 637 So.2d 871, 875 (Miss.1994). The State bears the burden of bringing a defendant to trial. Ross v. State, 605 So.2d 17, 24 (Miss.1992); Flores, 574 So.2d at 1321. However, the assertion of one’s right to a speedy trial weighs more heavily in one’s favor than not asserting it. Jaco v. State, 574 So.2d 625, 632 (Miss.1990). This factor weighs against Bates.

k- Prejudice

¶ 14. The only prejudice argued by Bates during his motion was that he had been incarcerated since his arrest. After trial, Bates attempted to allege that there were several more witnesses he might have called to testify had the trial occurred sooner. In a post-trial hearing, Bates testified that he was not guilty of the felony of which he had been convicted and that he had not told his attorneys previously about the witnesses he might have had. Despite the fact that Bates’ claim of new witnesses came too late, Bates’ testimony only stated that the witnesses could have testified to Bates’ actions at the club where he worked before he was arrested. They could not, however, testify as to what occurred after Bates and Hickman left the club. Their testimony would therefore be irrelevant and would not refute the evidence against Bates provided by the prosecution. The only evidence therefore shown by Bates was his incarceration. Pre-trial incarceration is insufficient to establish Barker prejudice. Moore v. State, 837 So.2d 794, 799(¶ 12) (Miss.Ct.App.2003). Although there is a presumption of prejudice resulting from a delay of more than eight months, a defendant must still show actual prejudice in order to obtain relief. DeLoach v. State, 722 So.2d 512, 518(¶23) (Miss.1998). Absent evidence of actual prejudice to a defendant’s defense, egregious unexplained delay, or delay intentionally caused by the State, this factor weighs against Bates.

5. Balance

¶ 15. The delay of 654 days itself is not so egregious itself as to require a finding of a denial of a right to speedy trial. Bingham v. State, 755 So.2d 426 (Miss.Ct.App.1999) (640 day delay). Balancing the factors above, Bates was not denied his constitutional right to a speedy trial. This issue is without merit.

II. DID THE TRIAL COURT ERR WHEN IT SUBMITTED THE WHOLE VIDEOTAPE TO THE JURY DURING DELIBERATIONS?

¶ 16. Bates asserts that the jurors may have seen portions of the videotape which were not admitted into evidence. The video admitted into evidence was stopped at a point after the package was retrieved from under the passenger seat of the car. This point was selected so that the jury would not see the discovery of a small amount of cocaine in Bates’ jacket pocket. During deliberations, the jury requested a second viewing of the tape. Bates’ objected to the second viewing on grounds that the jurors might have seen images on the tape that had not been admitted into evidence. The trial court overruled Bates’ objection.

¶ 17. Bates did not support his assertion with affidavits, testimony, or other evidence. The trial court indicated that if there was proof that the jurors watched or listened to some part of the video that had not been admitted, a new trial would have to be ordered. The prosecution submitted the affidavits of two jurors which stated that the jury did not watch the videotape past the point in time at which the package of cocaine was retrieved from the car, much earlier than the point objected to by Bates. Bates now asserts that the affidavits of the jurors should not have been received, although he failed to object to the admissibility of the affidavits at trial. The affidavits revealed nothing more than that the videotape was turned off after the cocaine was retrieved from beneath the passenger seat of the vehicle previously occupied by Hickman and Bates. Bates argues that the trial court selected an improper stopping point at trial, but again he did not object to the stopping point selected by the trial court at trial. These issues are therefore not properly before this Court. Watts v. State, 828 So.2d 835, 842(¶ 18) (Miss.Ct. App.2002).

¶ 18. Bates had the burden of proof to demonstrate that the jury had in fact watched portions of the video not admitted into evidence. Bates offered no evidence to support his assertion. The State points out that even if the jury had seen the part of the tape held to be inadmissible, it would have been non-prejudicial. The small amount of cocaine was found on Bates incident to his arrest. The fact that Bates had a small amount of cocaine in his pocket and over two pounds at his feet cannot be seen as the commission of separate criminal acts and therefore is not subject to Mississippi Rules of Evidence 404. As part and parcel of the possession for which Bates was charged, even if the video had been viewed in its entirety, no prejudice would have occurred and any error would have been harmless. This issue is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF POSSESSION OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

IRVING, J.,

DISSENTING:

¶ 20. After the jury began its deliberations, it asked to view the videotape which had been made by the arresting officer of the events surrounding Bates’s arrest. The majority finds that the trial court did not err in its submission of the videotape to the jury for viewing. I disagree; therefore, I respectfully dissent.

¶ 21. I believe the process utilized by the trial court to accommodate the jury’s request was problematic and requires that this case be reversed for a new trial because the process undermined the fundamental principle that once a jury begins deliberations, no one other than the twelve jurors should be allowed in the jury room during its deliberations. The jury’s request to view the videotape presented a logistic problem for the court. During the course of the trial, the jury had been allowed to hear and see only a portion of the videotape because it contained other matters that were irrelevant and prejudicial to the charges on which Bates was being tried. Showing the jury only a portion of the tape during the trial did not, however, present a problem because the prosecutor simply stopped the playing of the videotape when it got to the part that was not being admitted into evidence. The tape was never redacted.

¶ 22. When the jury requested to view the tape again to assist in its deliberations, the trial court was not able to simply send the tape in because, as stated, the tape contained prejudicial information that had not been admitted into evidence. To cure this problem, the trial court instructed the prosecutor to play the videotape for the court outside the presence of the jury and to inform the court of the point where the viewing by the jury should end. This was done. However, Bates contends that the point where the prosecutor indicated was not the same spot as the one where the tape had been stopped when a portion of the tape was admitted into evidence during the course of the trial. Nevertheless, the trial court agreed that the videotape would be played until it reached this point. But again, the videotape was not redacted and given to the jury. Instead, the court decided, over Bates’s objection, that the videotape should be shown to the jury with the assistance of the bailiff. The bailiff was instructed where to begin and end the playing of the videotape. Apparently, the videotape was then given to the bailiff to be played for the jury in the jury room.

¶ 23. As noted earlier, Bates argues that the portion of the tape which the trial judge authorized to be played to the jury during jury deliberations was not the same portion which had been admitted into evidence during the presentation of the trial evidence. Additionally, he argues that the jury even may have seen additional unauthorized and un-admitted portions of the tape. However, while arguing strenuously that the jury was allowed to view extraneous material, Bates presented no evidence to prove the alleged discrepancies between the starting and stopping points of the two separate showings of the videotape. The State presented affidavits from two members of the jury attesting that the jury did not listen to or view the videotape beyond the point authorized by the court. Bates counters the State’s response with the argument that the affidavits from the two jurors were improper and insufficient to ascertain what actually happened with the viewing of the videotape. Bates further argues that the trial court should have conducted a full hearing and that all members of the jury should have been queried.

¶ 24. The majority finds that, since Bates failed to present evidence to substantiate his claim of extraneous matter being considered by the jury, the trial court did not err in allowing the videotape to be played.

¶ 25. I agree with the majority that Bates failed to present evidence to substantiate his claim that extraneous materials were considered by the jury. However, I do not believe our analysis should end there. I believe we should notice as plain error the fact that the bailiff was allowed in the jury room during deliberations. Not only was the bailiff allowed in the jury room, he was specifically sent in by the trial judge to assist in the presentation of evidence to the jury. I can find no justification or authority for such procedure. It matters not that, at that point, there was an absence of equipment to perform the redaction. The videotape was the State’s exhibit, and the State should have been prepared for this contingency.

¶ 26. Bates argued, as an alternative, that, since there was no equipment to perform the redaction, the jury should have been returned to the courtroom and the tape played, as it had been done during the trial, with all parties present. While this procedure was not appropriate either, it was at least a better alternative than the one selected by the trial judge.

¶ 27. I do not mean to suggest that the bailiff himself did anything inappropriate in the jury room. I am merely voicing my disapproval of the procedure chosen by the trial judge and its impact on the fundamental principle of criminal law that once a jury begins its deliberations, no one should be permitted to participate with it in the review or consideration of the evidence which has been presented during the course of the trial.

¶ 28. For the reasons presented, I respectfully dissent. I would remand for a new trial.