author:
[^CARTER, C.J.
      | t FITZSIMMONS, J., I,KUHN, J.,

text:
    STATE of Louisiana v. Curtis B. GONSOULIN.
    No. 2003 KA 2473.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Frank Sloan, Mandeville, for Defendant-Appellant, Curtis B. Gonsoulin.
    Walter P. Reed, Covington, Dorothy Pendergast, Metairie, for Plaintiff-Appel-lee, State of Louisiana.
    Before: CARTER, C.J., FOIL, WHIPPLE, PARRO, FITZSIMMONS,-KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDONALD, and McClendon, jj.
   [^CARTER, C.J.

We consider this matter en banc to resolve a conflict within this circuit as to the timeliness of the advice of rights at a habitual offender hearing.

BACKGROUND

The defendant, Curtis B. Gonsoulin, was charged by bill of information with one count of aggravated incest, a violation of LSA-R.S. MYS.l. He pled not guilty and, after trial by jury, was found guilty as charged. He subsequently was adjudicated a habitual offender and sentenced to ten years at hard labor without benefit of probation or suspension of sentence. The defendant appealed, urging three assignments of error. We affirm the conviction, habitual offender adjudication, and the enhanced sentence, but vacate the original sentence and remand.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant contends that the trial court erred in failing to properly inform him of his right to remain silent and of the allegations contained in the multiple offender bill of information. The defendant argues that his stipulation to being a habitual offender was invalid, as he was not advised of his right to remain silent prior to entering the stipulation. The defendant acknowledges that he was advised of his rights at his arraignment on the habitual offender bill of information; however, he contends that this was not sufficient to meet the requirements that he be advised of his right to remain silent prior to entering the stipulation.

LSA-R.S. 15:529.1 provides in pertinent part: of this Section, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person óf a previous conviction or adjudication of delinquency. Whereupon the court in which the subsequent conviction was had shall cause the person, tvhether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to laio and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b). The judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies, or adjudicated a delinquent for an offense or offenses specified above as set forth in the information.

D. (l)(a) If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state or adjudicated a ^delinquent under Title VIII of the Louisiana Children’s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substances Law involving the manufacture, distribution, or possession with intent to distribute a controlled danger- ' ous substance or a crime of violence as listed in Paragraph (2) of Subsection A
(3) When the judge finds that he has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling. (Emphasis added.)

A trial court’s failure to properly advise a defendant of his rights under the Habitual Offender Law requires that the habitual offender adjudication and sentence be vacated. See State v. Fox, 98-1547 (La.App. 1 Cir. 6/25/99), 740 So.2d 758, 760-61; State v. Griffin, 525 So.2d 705, 707 (La.App. 1 Cir.1988). Prior to accepting a defendant’s acknowledgement, confession, or admission to the allegations of the habitual offender bill, the trial court must advise the defendant of the right to remain silent and of the right to a formal hearing wherein the state would have to prove the allegations of the habitual offender bill. See State v. Brown, 95-0755 (La.App. 1 Cir. 6/28/96), 677 So.2d 1057, 1069-70. Furthermore, the language of the Habitual Offender Law must be strictly construed. State v. Jones, 504 So.2d 920, 922 (La.App. 1 Cir.1987). In this regard, an implicit and integral aspect of the requirements of LSA-R.S. 15:529.1 is the court’s duty to inform the defendant of his right to remain silent. Id.; State v. Griffin, 525 So.2d at 706.

Louisiana Code of Criminal Procedure article 551 A provides that an arraignment “consists of the reading of the indictment to the defendant by the clerk in open court, and the court calling upon the defendant to plead.” The reading of the indictment may be waived. The arraignment and the defendant’s plea shall be entered into the minutes of the court and shall constitute a part of the record. LSA-C.Cr.P. art. 551A. While a habitual offender proceeding results in sentencing enhancement, rather than a separate criminal conviction, the requirement under LSA-R.S. 15:529.1 D(l)(a) that the defendant be brought before the court, informed of the allegations and of his right to a formal hearing, and be made to admit or deny the allegations, conforms with the above definition of an arraignment.

In State v. Harris, 95-0900 (La.5/19/95), 654 So.2d 680 (per curiam), the Louisiana Supreme Court stated:

Admissions of identity at a multiple offender hearing implicate the defendant’s Fifth Amendment privilege against self-incrimination. Nevertheless, multiple offender proceedings “simply should not be equated (at least for purposes of determining the validity of an admission) to trials of guilt or innocence.” This Court has therefore declined to adopt as a constitutional prerequisite to a valid admission of identity at a multiple offender proceeding a procedure analogous to the Boykin colloquy which must accompany a valid plea of guilty. In the absence of any allegation or showing that the admission was involuntary, ... the availability of post-conviction relief turns on whether the proceedings as a whole accorded the petitioner fundamental fairness and due process of law. (Citations omitted.)

| sBased on Harris, it is clear that a full-fledged colloquy is not required. Nonetheless, the record does show that at the July 10, 2002 arraignment, the defendant was fully advised of his rights at the arraignment on the habitual offender bill. At that hearing, defense counsel waived the reading of the bill and the defendant stood silent at the time he was asked to enter his plea. Thus, it appears that at the arraignment hearing the defendant understood his right to remain silent as he chose to invoke that right by remaining silent when asked by the court for his plea. At the subsequent hearing, on August 14, 2002, the defendant was not readvised of his rights at the time his attorney stipulated to the allegations set forth in the habitual offender bill.

We find that the defendant was sufficiently _ advised of his rights at his arraignment and that advice of rights was sufficient to comply with the requirements of LSA-R.S. 15:529.1 D(l) and (3). The defendant, who was represented by counsel, clearly understood those rights by choosing to remain silent at the arraignment hearing, which prompted the setting of the hearing concerning the habitual offender allegations. It would be unnecessarily redundant to advise him again of his right to remain silent at the second hearing, particularly because the only reason he was there was because he had exercised his right to remain silent, after being advised he had this right. The law does not expressly state that the court is required to inform the defendant of his rights at each phase of the habitual offender proceeding. The law requires that the record demonstrate that the proceedings as a whole were fundamentally fair and accorded the defendant due process of law. See State v. Kennon, 34,455 & 34,456 (La.App. 2 Cir. 2/28/01), 781 So.2d 734, 738-40. Considering the above, we find that the trial court did not err in not advising the defendant of his rights a second time before he entered his stipulation. This assignment of error is without merit.

LWe agree with the dissenting opinion in State v. Tyrone, 00-0927 (La.App. 1 Cir. 2/16/01), 808 So.2d 445, 449. To the extent that this court’s decision is inconsistent or in conflict with that opinion, State v. Tyrone is overruled.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant contends that the trial court erred in failing to vacate his original sentence before imposing the sentence as to his habitual offender adjudication. The defendant asks this court to vacate his original sentence.

We agree with the defendant’s contention that the court failed to vacate the original sentence before sentencing the defendant as a habitual offender. Although it is apparent from the trial court’s actions that it intended to vacate the original sentence, out of an abundance of caution, we vacate the defendant’s original sentence. See State v. Jackson, 00-0717 (La.App. 1 Cir. 2/16/01), 814 So.2d 6, 11 (en banc), writ denied, 01-0673 (La.3/15/02), 811 So.2d 895. We hereby remand the case for the trial court to amend the minute entry and commitment to reflect that the original sentence has been vacated.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant contends that the trial court erred in failing to advise him of the delays for applying for post-conviction relief at his sentencing as a habitual offender. The defendant acknowledges that the trial court informed him of the post-conviction delays at the time of his original sentencing; however, he asserts that the trial court failed to advise him of the delays at the time he was sentenced as a habitual offender. The defendant requests this court to direct the trial court to provide him with written notice of the correct prescriptive period for applying for post-conviction relief.

Louisiana Code of Criminal Procedure article 930.8 C provides that, at the time of sentencing, the trial court shall inform the defendant of the prescriptive [7period for seeking post-conviction relief. However, a failure to do so by the trial court has no bearing on the sentence and is not grounds to reverse the sentence or remand the case for resentencing. See State v. Morgan, 93-2365 (La.App. 1 Cir. 12/22/94), 648 So.2d 1063, 1065-66, writ denied, 95-0207 (La.6/2/95), 654 So.2d 1104. Rather, because we concur in the defendant’s observation and the case is being remanded, we hereby further direct the trial court to give the defendant written notice of the prescriptive period for applying for post-conviction relief within ten days of the rendition of this opinion and to file written proof in the record of the proceedings that the defendant has received the notice. See State v. Lewis, 94-2145 (La.App. 1 Cir. 11/9/95), 665 So.2d 38, 43.

CONCLUSION

For the above reasons, the defendant’s conviction, habitual offender adjudication and enhanced sentence are affirmed. The defendant’s original sentence is vacated and this matter is remanded with instructions to the trial court to amend the minute entry and commitment to reflect that the original sentence has been vacated. The trial court is further ordered to record the defendant’s receipt of written notice of the prescriptive period for applying for post-conviction relief, which notice is to be given within ten days of the rendition of this opinion.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND ENHANCED SENTENCE AFFIRMED; ORIGINAL SENTENCE VACATED; REMANDED WITH ORDERS AND INSTRUCTIONS.

FITZSIMMONS, J., dissents and assigns reasons.

GAIDRY, GUIDRY and PETTIGREW, JJ., dissent for reasons assigned by FITZSIMMONS, J.

KUHN, J., concurs and assigns reasons.

| t FITZSIMMONS, J.,

dissenting, with reasons.

I respectfully dissent. Before the defendant “acknowledges or confesses in open court,” the law, as written by the legislature, requires that he must be “duly cautioned as to his rights.... ” La. R.S. 15:529.1 D(3). I cannot agree that the caution at the arraignment five weeks before, during which defendant did not confess, was sufficient to' meet the statutory requirement. The Habitual Offender law must be strictly construed. State v. Jones, 504 So.2d 920, 922 (La.App. 1 Cir.1987).

I,KUHN, J.,

concurring.

I concur to state that the remand directed here is unnecessary. Correction of records below does not require a remand and may be accomplished by a simple order directed to the trial court. Judicial economy and efficiency would dictate this alternative course of action

      . The facts surrounding the charge of aggravated incest are omitted from this opinion, because they are not relevant to the issues raised in this appeal.


source: Caselaw Access Project

author: LWHIPPLE, J.

license: Public Domain

text:
    Janet Q. TYLER v. NIFTY FIFTIES CAFE’.
    No. 2003 CA 1895.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Michael S. Zerlin, Thibodaux, Counsel for Plaintiff/Appellant, Janet Q. Tyler.
    Wade A. Langlois, III, Gretna, Counsel for Defendant/Appellee, Nifty Fifties Cafe’.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   LWHIPPLE, J.

Claimant, Janet Q. Tyler, appeals the judgment of the Office of Workers’ Compensation (OWC) denying her claim for workers’ compensation benefits and dismissing her claim with prejudice and at her costs based on the finding that: (1) she failed to prove by a preponderance of the evidence that she was involved in an accident arising in the course and scope of her employment with the defendant, Nifty Fifties Café; (2) she failed to prove that she had any disability from August of 2002 or any disability that resulted in an inability to earn 90% of her pre-injury wages at any time; and (3) she violated LSA-R.S. 23:1208 and, therefore, forfeited her rights to workers’ compensation benefits. The sole issue presented for review is whether the OWC erred in its factual finding that claimant did not sustain injuries resulting from a work-related accident. Specifically, the claimant contends that OWC “erred manifestly when it ruled in favor of defendants and against plaintiff, denying that [the claimant] had a work related [sic] accident basing [the] decision on allegations and not on any concrete or medical records.”

After a thorough review of the record, we find that the OWC’s sound and well-written reasons for judgment, which we adopt and attach hereto as Appendix “A,” citing Resweber v. Haroil Construction Company, 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7 (recently affirmed by St. Bernard Parish Police Jury v. Duplessis, 2002-0632 (La.12/4/02), 831 So.2d 955), adequately explain the decision. Further, we find the record properly supports the fact-finder’s determination; and, we are unable to say the fact-finder was manifestly erroneous or clearly wrong. As this issue involves no more than an application of well-settled rules to a recurring fact situation, we affirm the July 11, 2003 judgment of the OWC in accordance with Uniform Rules — Courts of Appeal, | ¡¡Rule 2-16.2A(4), (5), (6), (7), and (8). Costs of this appeal are assessed against claimant, Janet Q. Tyler.

AFFIRMED.

I ¿APPENDIX “A”

JANET Q. TYLER

VERSUS

NIFTY FIFTIES CAF021E

DOCKET NUMBER 02-05860

OFFICE OF WORKERS’ COMPENSATION

DISTRICT 9, HOUMA

STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

STATEMENT OF THE CLAIM

The claimant, Janet Q. Tyler, alleges she was injured while in the course of and arising out of her employment with defendant, Nifty Fifties Café, as a kitchen worker on June 16, 2002. The accident allegedly occurred when she was lifting a glass rack and felt the pain in her back and leg. This was something she did many times every night during the course of her employment with defendant in the approximately two months she had worked there. As a result the claimant alleges she suffered a back injury and is entitled to medical and weekly indemnity benefits under the Louisiana Workers’ Compensation Act.

The defendant alleges the claimant has violated LSA-R.S. 23:1208.

FINDINGS OF FACT

■*" The claimant was employed by defendant as a kitchen worker on June 16, 2002 and had been employed by defendant for less than two months.

The claimant had not worked for several years prior to going to work for defendant.

3. The claimant claims she was injured while making a twisting motion holding a rack of glasses, something that she did many times on each night of her employment.

4 The claimant questioned a co-worker, Jennifer Chatman, about the company drug policy in regard to her accident and told Ms. Chatman that she had smoked herb.

5. The claimant told Ms. Chatman that she would get whatever she wanted if Ms. Chatman would give a statement in the claimant’s favor about the accident.

6. The claimant was seen at Chabert Medical Center on June 17, 2002 complaining of back pain from twisting her back at work. No objective findings are noted in the records and claimant was diagnosed with a lumbar muscle strain.

The claimant was also seen at Chabert Medical Center on June 29, 2002. Again, no objective signs of injury were noted. The claimant complained of back and flank pain, but no leg pain.

—Lfi?‘ The claimant claimed she injured her low back and leg in the accident of June 16, 2002 and felt this pain immediately. No leg pain was ever reported to the doctors at Chabert Medical Center.

The claimant was seen by the Family Doctor Clinic on July 10, 2002 and complained of burning sensation across her lower back. There was no complaint of leg pain. There was also no objective finding of injury.

10. The claimant was seen by Dr. Bruce Guidry at the Family Doctor Clinic on August 2, 2002 at which time she was reporting getting better. There were no complaints of leg pain and the doctor specifically noted no objective findings.

11. On August 8, 2002, the claimant complained to Dr. Guidry for the first time that she had pain in to her leg and foot. Dr. Guidry noted that there were no objective findings on that visit. At this time the claimant was referred for an MRI and to Dr. William Kinnard, orthopedic surgeon.

12. The claimant was rear ended by an eighteen wheeler on September 18, 2002.

13. The claimant testified that she suffered no back injury in that accident despite the fact that she was hit hard enough to injure her neck and arms and the records from Chabert Medical Center indicate she was complaining of back and leg pain. She also testified that she did not report any back or leg pain to the doctors at Chabert Medical Center on that date.

14. The claimant was next seen by Dr. Kinnard on December 5, 2002. Dr. Kinnard’s records indicate no objective symptoms. He recommended only conservative options. He stated, “I see no evidence to suggest significant pathology.” Dr. Kinnard did not place any restrictions on the claimant. Dr. Kinnard’s records did not indicate that an MRI was necessary.

15. The claimant was also being treated by Dr. Michael LaSalle for neck and arm pain as a result of the motor vehicle accident of September 18, 2002. The claimant was undergoing physical therapy as a result of the injuries suffered in that accident. The claimant testified that she was treated through March of 2003 for those injuries.

16. The claimant testified she had gallbladder surgery in 2003. The eondi1tion and medical treatment was not disclosed to the defendant in discovery.

17. The claimant had a prior accident in which she suffered an injury to her low back.

18. The claimant received treatment for this prior injury to her low back on January 31, 2000 at the Oktibbeha County Hospital in Starkville, Mississippi. The claimant reported to the hospital that she suffered neck pain and low back pain as a result of that accident. The hospital’s diagnosis was musculo skeletal pain. An x-ray of the claimant’s low back was performed.

19.The claimant denied any prior injury or accident involving her low back and denied any medical treatment for her low back in discovery and at trial.

| «CONCLUSIONS OF LAW

A claimant in a workers’ compensation proceeding has the burden of proving by a preponderance of the evidence that a work related accident occurred and caused a specific injury. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992)

Accident has a specific meaning in a workers’ compensation context. . LSA-R.S. 23:1021(1) provides:

“Accident means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

In this case, the defendant contends that the claimant failed in proving by a preponderance of the evidence that she had an accident while in the course of and arising out of her employment with defendant. The claimant contends that while twisting with a rack of glasses, something she admittedly has done on many occasions in her short time of employment with the defendant that she suffered pain to her back and leg. The defendant contends that this fails to establish a precipitous event.

A case on point is Stuart v. New City Diner, 758 So.2d 345 (La.App. 4th Cir. 2000). In Stuart, the claimant was a cafeteria line server who contended she was injured in an accident when she lifted a tray during her shift at the diner. In finding in favor of the defendant on the accident issue, the Fourth Circuit Court of Appeal stated:'

“In this Court’s judgment, the lifting of the tray in this case is not the type of traumatic event that fits the statutory definition of accident as amended in 1990. Furthermore, we know of no case, since the 1990 amendments to the statutory definition of accident, where a Court has held that such a routine motion as lifting a tray is an accident.”

This case is similar to the claims of the claimant in this case. Additionally, the definition of accident requires that the event directly produce objective findings of an injury, which is more than a degenerative progression. In this case, no doctor has ever noted any objective findings. The only thing documented from the claimant has been subjective complaints of pain.

Dr. Kinnard specifically noted in his report of December 5, 2002, “I see no evidence to suggest significant pathology.” Despite the complete lack of findings by all physicians, claimant contends she suffers constant pain in her back and legs. This is not credible.

The claimant did not prove any disability, at least past August 2002 when Dr. Guidry had the claimant on modified duty. A claimant has to prove a disability related to a work accident. Dr. Kinnard put no disability on the claimant.

In September 2002, the claimant was involved in a motor vehicle accident for which she had therapy and treatment through March of 2003 according to her testimony. The claimant did not |7prove that any disability she might have had was not caused by that accident as opposed to the alleged work accident.

Additionally, the claimant contends that she had gallbladder surgery some time in 2003. Her gallbladder condition may have disabled her. Certainly surgery would have disabled her for some period of time. She offered no medical records on this gallbladder surgery and gave the defendant no opportunity to do any discovery on this alleged condition. Her gallbladder condition was never disclosed to the defendant. The interrogatories addressed to the claimant, and which were admitted into evidence as a defense exhibit, specifically requested medical information such as this. Interrogatory No. 10 stated:

10. Please describe your medical history for the last ten years, including: a) the names of any physician or health care provider seen by you; b) any hospital or other health care institution you have been to; c) the treatment you received, the date you received the treatment, and the description of any condition that you were treated for; d) and any medication provided. You should respond to this interrogatory particularly about any part of the body claimed in this proceeding to have been injured or for which you are suffering symptoms as a result of your injury. However, this interrogatory is not limited to such injuries or conditions.

This Interrogatory requested information which would have included a gallbladder condition. The claimant contended that she suffered from this gallbladder condition for a number of years trying to explain her prior back problems and complaints. This makes that information relevant to this litigation, but it was never disclosed to the defendant to give the defendant the opportunity to do discovery on the condition to get a complete medical picture. The defendant was unable to get a medical opinion of whether gallbladder problems could account for the claimant’s pre-existing complaints because it did not have this information. The defense was prejudiced by the failure to give full information in response to Interrogatories. The claimant did not prove she had any disability related to the alleged work accident.

In addition, Ms. Chatman and Mary Curtis, another co-worker, both testified that the claimant was complaining of back and leg pain the day before the alleged accident. This brings into doubt and questions the credibility of the claimant on her contentions that she had an accident on June 16, 2002, while in the course of and arising out of her employment with defendant. The claimant’s attempts to prove that this preexisting pain that she had was somehow related to her gallbladder condition. However, again, she gave the defendant no opportunity to do any discovery on this and get full disclosure and evidence on this issue. The claimant’s contentions that gallbladder was the cause of her preexisting problems were not supported by any evidence. There is no evidence to state what kind of pain a person with gallbladder problems would have and whether that pain would be similar to low back and leg-pain. The claimant said she had gallbladder surgery, but offered no medical evidence to establish this.

The claimant’s lack of credibility was demonstrated by this gallbladder testimony. On direct examination she attempted to explain the back and leg pain that she reported to her co-workers Ms. Chatman and Ms. Curtis by contending that this was menstrual cramps. She did not contend that | Sthis was gallbladder pain. She testified specifically that she had never hurt her back before. The gallbladder condition came up when the claimant was shown the Oktibbeha County Hospital records regarding a prior back injury. The x-rays of her low back showed some gall stones. Her story then changed from menstrual cramps to gallbladder problems. No mention of her gallbladder was made until then.

In order to recover supplemental earnings benefits, a claimant has the initial burden of proving by a preponderance of the evidence an inability to earn at least 90% of her pre-injury wage. Smith v. La. Dept. of Corrections, 633 So.2d 129 (La.1994); Duhon v. Holi Temporary Services, Inc., 700 So.2d 1152 (La.App. 4th Cir.1997) The burden does not shift to the defendant until the claimant meets this initial burden. The mere fact that a claimant is not working does not shift the burden to the defendant. Boutte v. Langston Companies, 707 So.2d 1315 (La.App. 3rd Cir.1998) If the claimant does not meet her initial burden, then the burden does not shift to the defendant. Rapp V.[v.] City of New Orleans, 681 So.2d 433 (La.App. 4th Cir.1996) To do otherwise would provide a claimant with a strong incentive to remain unnecessarily unemployed.

In this case, the claimant has not shown that she cannot work in any capacity. She testified to very little effort to obtain employment. She stated she put in one written application and talked to other employers. She claims that when she disclosed her back problems, they told her they would refuse to hire her. She never identified any specific employers that she applied for. Her contention, in order to be believed, would have to have all of these employers violating state and federal law which prohibits questioning a person about any injury or disability before hiring. She was not interested in obtaining any employment.

The Fourth Circuit Court of Appeal in Duhon stated the following with regard to the plaintiffs burden of proof in a supplemental earnings benefits situation:

“The burden is not on the employer to offer evidence of a claimant’s ability to work. The burden is not on the employer to perform a functional capacity examination or a labor market survey for evidentiary purposes until the burden shifts. The burden is not on the employer to show that it made a job offer to claimant until the burden shifts. The burden is on the claimant to first show that he is unable to earn at least 90% of his pre-injury wages.”

The Duhon court stated that even if the claimant’s subjective complaints of pain were believed he failed to show that there was no employment available within the scope of his physical and educational abilities. Similarly, the claimant has failed to show that there was no work available within her abilities. She also failed to show that she had any current restrictions.

The claimant contends that she is entitled to a MRI in this case. Dr. Guidry recommended a MRI back in August of 2002. The claimant contends that Dr. Kin-nard also recommended a MRI. However, there is nothing in Dr. Kinnard’s report to indicate that she does need a MRI and he saw her much more recently than Dr. Gui-dry. In fact, Dr. Kinnard’s report indicates that he did not think that the claimant had any significant pathology and that he was only recommending conservative options. This does not prove the necessity of a MRI. There is nothing in Dr. Kin-nard’s certified medical records to indicate that he ordered a MRI.

|9The claimant has made misrepresentations in this case which result in a forfeiture of benefits under LSA-R.S. 23:1208. The Workers’ Compensation Act provides for a forfeiture of benefits when there are willful misrepresentations made for the purpose of obtaining benefits. In Resweber v. Haroil Construction Co., 660 So.2d 7 (La.1995), the court found Section 1208 to be clear and unambiguous.

“... Section 1208 applies to any false statement or misrepresentation, including one concerning a prior injury, made willfully by a claimant for the purpose of obtaining benefits.”

Resweber was recently strongly reaffirmed by the Supreme Court in St. Bernard Parish Police Jury v. Duplessis, 831 So.2d 955 (La.2002). The Supreme Court found that any misrepresentation for the purpose of obtaining benefits results in a forfeiture of all benefits.

“The Louisiana legislature has made it clear: false statements that are willfully made for the purpose of obtaining workers’ compensation benefits constitutes an attempt to defraud the workers’ compensation system. Therefore, once it is determined that a claimant has willfully made a false statement for the purposes of receiving any benefit or payment, the plain language of the statute mandates that the right to compensation benefits under the Workers’ Compensation Act are forfeited. Thus, the only remedy for a willful misrepresentation, made for the purpose of obtaining workers’ compensation benefits, is found within the Workers’ Compensation Act, and, therefore, cannot be abridged by this Court.”

In this case, the claimant willfully misrepresented the fact that she had a prior accident in which she injured her back. She did not disclose this accident, injury and medical treatment in discovery or on direct examination. The Oktibbeha County Hospital records show that the claimant reported a back injury to the doctors in the hospital on January 31, 2000. Her neck and back were x-rayed. She claimed at trial that she did not remember this incident. She went to an emergency room and was treated for a neck and back injury. She also underwent x-rays. This occurred just over two years prior to the alleged accident in this case.

The claimant contends that she sought no medical treatment after that and had no further problems. However, there is no way to verify this or to do further discovery for the defendant since the claimant failed to disclose this information in discovery. Claimant intends that she could not remember the accident and this treatment, but she can specifically remember not having any further treatment.

It is also difficult for the defendant to discover any information about this injury since it occurred in a different state. The claimant’s misrepresentations on this have prejudiced the defendant.

Additionally, the claimant reported to two co-workers of prior back pain. Both Ms. Chatman and Ms. Curtis were credible. Ms. Curtis is not even any longer an employee of the defendant. This is not consistent with the claimant’s contention that she had no prior back pain, injuries or treatment.

ImThe claimant denied on direct examination having any prior back pain, injuries or treatment. She denied in discovery to the defendant in her deposition and her Answers to Interrogatories that she had any prior back pain, injuries, or treatment. These misrepresentations have resulted in a forfeiture of benefits. Louisiana courts have indicated a zero tolerance for misrepresentations of this nature.

In Cole v. Drainage District No. 9, 750[760] So.2d 529 (La.App. 5th Cir.2000), the claimant injured his back in a work related accident. However, he had misrepresented a prior back injury from an automobile accident for which he had received treatment three prior to his work injury. As a result, the court found that benefits had been forfeited under Section 1208.

Another similar case is Dukes v. Sherwood Acres Apartments, 835 So.2d 742 (La.App. 1st Cir.2002) the claimant made misrepresentations regarding prior injury and treatment. As a result, the claimant was found to have forfeited benefits under Section 1208.

The claimant made other misrepresentations in this case. She made misrepresentations with regard to her gallbladder condition. At trial, she attempted to explain prior complaints of back and leg pain because of a preexisting gallbladder condition. However, this condition was never disclosed to defendants. In her responses to Interrogatories, she did not disclose such a condition despite a specific request. No medical evidence of any treatment for gallbladder problems or back pain resulted to gallbladder problems was introduced.

The claimant also denied telling any coworkers about prior back pain and leg pain. This was refuted by Ms. Chatman and Ms. Curtis. Ms. Chatman also testified about the claimant’s questions about drug testing around the time of her alleged accident. This testimony was unre-butted.

Ms. Chatman also testified that the claimant promised her that she would not have to worry about anything if she gave a statement in favor of the claimant.

Finally, the claimant testified at trial that she has had back and leg pain since the alleged accident occurred on June 16, 2002. Following the accident the claimant went to Chabert Medical Center. While there is documentation of complaints of back pain, there is no documentation of any complaint of leg pain. The claimant testified at trial that she has had leg pain since the day of the accident.

There is no notation of any complaints of leg pain when the claimant saw Dr. Guidry through the visits of August 2, 2002. The first time she complained of leg pain to Dr. Guidry was August 8, 2002. This is nearly two months after the accident and contradicts the claimant’s contention that she had leg pain since the day of the accident.

This Court finds the claimant, Janet Q. Tyler, failed to prove by a preponderance of evidence that she was involved in an accident while in the course of and arising out of her employment with defendant, Nifty Fifties Café.

lnThis Court also finds the claimant failed to prove that she has any disability since August of 2002 or any disability which has resulted in an inability to earn 90% of her pre-injury wages at any time.

This Court also finds the claimant is not entitled to workers’ compensation benefits.

This Court also finds the claimant has violated LSA-R.S. 23:1208, and therefore, has forfeited her rights to workers’ compensation benefits.

This Court further finds that the workers’ compensation claim of Janet Q. Tyler is hereby dismissed with prejudice at her costs.

/s/ Glynn F. Voisin Glynn F. Voisin Judge, District 9, Southern Division Office of Workers’ Compensation 8026 Main Street, Suite 404 Houma, Louisiana 70360


author: _]¿McCLENDON, J.

text:
    Joyce JENKINS v. COUNTRY CORNER AUTO CENTER, L.L.C.
    No. 2003 CA 2221.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      John H. Musser, V, Charles B. Wallace, Emily Stevens Hardin, New Orleans, Counsel for Appellant/Plaintiff, Joyce Jenkins.
    Stephen W. Brooks, Jr., Shannon K. Lowry, Richard J. Voelker, Covington, Counsel for Appellee/Defendant, Country Corner Auto Center, LLC.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   _]¿McCLENDON, J.

In this workers’ compensation dispute, the claimant, Joyce Jenkins, alleged that she injured her lower back while in the course and scope of her employment as a cook for Country Corner Auto Center, L.L.C. (Country Corner). The workers’ compensation judge rendered judgment in favor of Country Corner. Ms. Jenkins appealed asserting that the workers’ compensation judge erred in finding that Ms. Jenkins failed to meet her burden of proving that a compensable accident occurred. Country Corner answered the appeal alleging that the workers’ compensation judge erred in failing to find that Ms. Jenkins violated LSA-R.S. 23:1208 and in failing to fine Ms. Jenkins.

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Lizana v. Gulf Coast Pain Institute, 03-1672, p. 2 (La.App. 1 Cir. 5/14/04), 879 So.2d 763, 764. Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, “[i]f the [fact finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

After a thorough review of the record and exhibits in this matter, we cannot conclude that the decision of the workers’ compensation judge was |3manifestly erroneous. Thus, in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.2A(8), the decision of the Office of Workers’ Compensation is affirmed at Ms. Jenkins’ costs.

AFFIRMED.


author: J^FOIL, J.

text:
    STATE of Louisiana In the Interest of A.N.
    No. 2003 KJ 2776.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Cheryl A. Carter, Houma, for Appellee State of Louisiana.
    Bernard F. Levy, Houma, for Appellant Defendant A. N.
    Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY
   J^FOIL, J.

A sixteen-year-old child, identified herein as A.N., was arrested and charged with the alleged commission, from about June 1, 2003 through August 4, 2003, of aggravated rape in violation of La. R.S. 14:42 A(4). A continued custody hearing was held on August 12, 2003 and the juvenile court judge found probable cause to believe that the juvenile had committed the offense of aggravated rape. A petition charging the youth with aggravated rape was then filed on August 14, 2003, pursuant to the Children’s Code. The juvenile was arraigned in juvenile court and pled not guilty.

On September 17, 2003, the juvenile was found guilty of the responsive offense of sexual battery in violation of La. R.S. 14:43.1. On September 30, 2003, after a dispositional hearing, the juvenile was adjudicated a delinquent and was committed to the custody of the State of Louisiana for three years, with credit for time served. In addition, the court recommended that the juvenile receive psychiatric and psychological counseling and that he be placed in a sexual offender’s program.

A suspensive appeal was taken on October 14, 2003. Appeal counsel discovered that the record was not complete and secured an order from this court, dated January 16, 2004, for supplementation of the record. On March 26, 2004, appeal counsel represented that, after reviewing the record, no reversible error that would inure to the benefit of the juvenile was identified, and he requested that this court withdraw and dismiss the appeal. We responded by denying the motion, advising defense counsel that he was required to follow the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

| 3As of the date of submission of this matter for our review, defense counsel had not complied with our directives. However, having noted reversible patent error, we deem it appropriate to proceed with disposition of this matter.

PATENT ERROR

La. Ch.Code art. 305 provides in pertinent part:

A. (1) When a child is fifteen years of age or older at the time of the commission of first degree murder, second degree murder, aggravated rape, or aggravated kidnapping, he is subject to the exclusive jurisdiction of the juvenile court until either:
(a) An indictment charging one of these offenses is returned.
(b) The juvenile court holds a continued custody hearing pursuant to Articles 819 and 820 and finds probable cause that he committed one of these offenses, whichever occurs first.
(2) Thereafter, the child is subject to the exclusive jurisdiction of the appropriate court exercising criminal jurisdiction for all subsequent procedures, including the review of bail applications, and the child shall be transferred forthwith to the appropriate adult facility for detention prior to his trial as an adult.

In this case, the juvenile court lost jurisdiction of this matter when the juvenile court judge found probable cause to believe that A.N. committed aggravated rape. At that point, the juvenile court had no jurisdiction to adjudicate A.N. a delinquent or to impose a judgment of disposition. Accordingly, the adjudication and disposition are a nullity. In accordance with the mandate of La. Ch.Code art. 305 A(2), this matter is remanded to the juvenile court so that the juvenile court can transfer the juvenile to the appropriate adult facility for detention prior to his trial as an adult or such other disposition of this matter as the District Attorney for the Parish of Terrebonne may deem appropriate.

DECREE

Juvenile Court Adjudication and Disposition vacated; case remanded to the juvenile court for transfer of juvenile to the appropriate adult detention facility pending trial or other disposition of the case.


author: I,GREMILLION, Judge.

text:
    Susan BROWN, et al. v. Foster R. STICKLEY, M.D., et al.
    No. 04-439.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.
    Rehearing Denied Dec. 8, 2004.

      Joseph T. Dalrymple, Rivers, Beck, & Dalrymple, Alexandria, LA, for Plain-tifflAppellee, Susan Brown, Individually.
    James R. Shelton, Durio, McGoffin, Stagg & Ackerman, Lafayette, LA, for Defendants/Appellants, St. Paul Fire & Marine Ins. Co., Foster R. Stickley, M.D.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and Billy H. EZELL, Judges.
   I,GREMILLION, Judge.

In this case, the plaintiff, Susan Brown individually and on behalf of her minor son, Arkel Brown, appeals the jury’s judgment in favor of the defendant, Dr. R. Foster Stickley, finding that he did not commit medical malpractice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Brown filed suit against Dr. Stickley in March 1997, claiming that her son was born with severe deficits and defects due to Dr. Stickley’s negligence. Brown alleged that Dr. Stickley ordered x-rays, dye tests, and fluoroscopy without first ascertaining whether she was pregnant, and as a direct result of said tests, her son was born with severe defects.

A jury trial was held and the jury rendered a verdict dismissing all claims against Dr. Stickley. Thereafter, Brown filed a motion for JNOV, which was denied. In denying the JNOV, the trial court stated that the issue at trial was only whether Dr. Stickley should have administered a pregnancy test before giving her the tests. The trial court further stated that the jury concluded that Dr. Stickley was justified in believing Brown was not pregnant. Brown now appeals.

ISSUES

Brown assigns as error:

1. The jury’s findings were not only manifestly erroneous, but amounted to jury nullification because the jury ignored certain testimony, including Dr. Stickley’s own testimony that he committed malpractice.

2. The trial court erred in denying her JNOV.

L.3. The jury committed manifest error in disregarding overwhelming evidence of deviations from the standard of care by Dr. Stickley.

LAW

A court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Id. at 844.

Though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. “[W]here two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart v. State Through DOTD, 617 So.2d 880, 883 (La.1993). “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Id. at 882.

In a medical malpractice action, the plaintiffs burden is set forth in La.R.S. 9:2794(A), which states that the plaintiff must prove:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical |<¡negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(8) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

EVIDENCE

Brown’s pretrial memorandum stated there were three focal issues in this medical malpractice claim, to wit, that Dr. Stickley was negligent in failing to appreciate the obvious signs of Brown’s pregnancy and to diagnose the same, in failing to administer a pregnancy test prior to ordering x-rays and other medications contraindicated in pregnancy, and in failing to advise Brown of the risk of x-rays.

The uncontroverted evidence is that Brown had been Dr. Stickley’s patient since 1989, when she was fifteen years old. At that time she began taking birth control pills. In October 1991, he delivered her first baby, a son. On February 2, 1995, Brown complained to Dr. Stickley that she was having abdominal pain and that she had missed some of her birth control pills. Dr. Stickley ordered a pregnancy test, administered on February 16, 1995, which was negative. In March 1995, Dr. Stickley ordered an ultrasound after Brown continued to complain of pain. The ultrasound revealed an ovarian cyst on her left ovary. At a March 28, 1995 appointment, Dr. Stickley started Brown on birth control pills to treat the cyst. Two weeks later, on April 11, 1995, Brown returned for another ultrasound to monitor the cyst. No evidence of pregnancy was revealed at this ultrasound. Dr. Stickley next|4saw Brown on April 20, 1995, when she complained of severe abdominal pain. Dr. Brown noted in his records “no coitus,” and ordered several tests, which are at issue in this case.

The tests, which exposed Brown and her embryo to radiation, were conducted on April 24-25, 1995. Brown was approximately four weeks pregnant at the time.

Brown testified she dropped out of school in the ninth grade. She stated that, at the April 20, 1995 appointment, she told Dr. Stickley that she was having stomach pain, could not keep any food down, and was gaining weight. She stated that Dr. Stickley told her that she might have an ulcer. Brown testified that she menstruated in February, twice in March, and not at all in April 2004. Brown testified that Dr. Stickley did not ask her if she thought she was pregnant nor if she had been having sex. She also stated that, prior to the April 20th appointment, she was having sex every night. She again testified that the issues of sex and pregnancy were never mentioned at the visit.

Brown testified that she was warned about the potential risks x-rays pose to developing babies, but only after her x-rays were completed. Brown testified that she realized she might be pregnant sometime in May, so she went and bought a home pregnancy test, which came back positive.

Brown testified that she called Dr. Stickley’s office and was urged to come in right away. She stated that Dr. Stickley warned her of the possibility for severe defects in her unborn child due to the x-rays. She stated that he recommended she have an abortion. Brown testified that she was so upset by this that she told him 1 Bthat she no longer wanted to be his patient. Brown stated that she did not believe in abortion and was constantly worried and depressed throughout her pregnancy concerning the state of her baby. Brown went on to describe the difficulties she encountered following Arkel’s birth. She testified that she signed the consent forms prior to the x-rays because she did not think she was pregnant since Dr. Stickley did not tell her she was pregnant.

Dr. Stickley testified that he first began seeing Brown in 1989. He stated that he delivered her first child in 1991, via caesarean section. In January 1994, Dr. Stick-ley removed a Norplant birth control device he had implanted in Brown’s arm because she wanted to get pregnant. In August 1994, Dr. Stickley prescribed birth control pills to Brown. In October 1994, Dr. Stickley notated changing Brown’s birth control pill prescription from one brand to another. Brown next visited Dr. Stickley in February 1995, complaining of pain in the lower abdomen and nausea. His records indicate she had her last period in January and had “messed up” on the birth control pills for two days. Dr. Stick-ley’s records indicate that he ordered a pregnancy test on February 16, 1995, which was negative. Dr. Stickley next ordered an ultrasound on March 24, 1995, to determine the cause of Brown’s irregular menstrual cycle. The ultrasound showed that she had an ovarian cyst. It also showed no evidence of intrauterine pregnancy. Brown next visited Dr. Stickley on March 28, 1995, regarding her ovarian cyst. At this time he prescribed birth control pills to treat the cyst and indicated that a follow-up ultrasound would be done in two weeks. The follow-up ultrasound was conducted on April 11, 1995, which showed no evidence of ovarian cyst or intrauterine pregnancy.

[¡¡Tile next time Brown visited Dr. Stick-ley was on April 20, 1995, the date of the alleged deviation from the standard of care. Dr. Stickley’s notes read “Questionable problems. No coitus. Wakes up at six (6:00) a.m.” Dr. Stickley stated that he palpated Brown’s stomach where she described the pain checking for various things. He also described the pelvic exam he performed on Brown that day. Dr. Stickley noted in the diagnosis section: “Work-up. Ultrasound, GI Series, Barium Enema.”

Dr. Stickley testified that his notation “no coitus” indicated that Brown had told him that she had not had sex since the last pregnancy test. He stated that he is well aware of the dangers of doing x-rays on a pregnant woman and that he would never have ordered them if she had indicated that she had sex since the previous pregnancy test. He stated that Brown did not tell him that she was having sex every day as she and her then-boyfriend, Jimmy Thomas, testified. Dr. Stickley went on to describe the various reasons he ordered the tests: the GI Series to determine if she had an ulcer, the KUB or plain x-ray of the kidneys, uterus, and bladder to determine what was causing her pain upon urination, urinalysis to make sure there was no infection or blood in her urine, and the barium enema to rule out diverticulitis.

Dr. Stickley went on to testify that he did not refer Brown to a gastroenterologist because there are none in the area who accept Medicaid patients. When Dr. Stickley was questioned as to why he does not perform pregnancy tests on every single woman of child-bearing age before ordering x-rays, he stated that urine pregnancy tests, especially at the time, were not accurate and that they had many false negatives. He further stated that they do not do blood pregnancy tests in the office; 17they send those out to a lab. Dr. Stickley went on to testify that Brown ended up in the emergency room due to her stomach pain on April 27, 1995, and that the records indicate that she told the nurse that her last period was in “4/95.”

Dr. Stickley next saw Brown on May 3, 1995, at which time he prescribed antibiotics for a vaginal infection. Thereafter, Dr. Stickley received a phone call from Brown indicating that a home pregnancy test had come back positive. Dr. Stickley ordered an ultrasound for May 18, 1995, and prescribed some prenatal vitamins.

On May 22,1995, Dr. Stickley noted that Brown had received radiation while pregnant. He testified that he discussed the radiation and its effects on the baby with the radiologist, Dr. Pam Darr, who performed the tests. Dr. Stickley next saw Brown on May 30, 1995, at which time he discussed the possibility of her having an abortion. However, he stated that she did not believe in abortions and instead, would be monitored via ultrasound.

On cross-examination, Dr. Stickley admitted that another time in Brown’s records he noted “no coitus,” but that this was an admonition not to have sex. He also did not know why he did not use the tex-minology “LMP” or “last menstrual period” to note when she last menstruated.

Dr. Pamela Darr testified that, on two separate occasions on April 24 and 25th, 1995, Brown signed a sheet of paper stating “I AM NOT PREGNANT AND HAVE NO REASON TO BELIEVE I AM PREGNANT. I AM NOT LATE FOR A MENSTRUAL CYCLE.” Dr. Darr stated that it is her routine practice to question women in their child-bearing years as to whether or not they could possibly be |spregnant. Dr. Darr also testified that she routinely asks all patients whether or not they are having unprotected sex, and if they are, she will not perform any tests on them.

Dr. Bruce Halbridge, an obstetrician/gynecologist in Houston, Texas, testified as an expert on behalf of Brown. He said that he has delivered approximately 7,000 babies over the course of his career. Dr. Halbridge testified that, after reviewing all of the documentary evidence, he believed Dr. Stickley deviated from the standard of care by not being certain that Brown was not pregnant before ordering diagnostic radiology tests such as x-rays. Dr. Hal-bridge described a series of questions and examinations that Dr. Stickley should have asked and conducted. Dr. Halbridge testified that Dr. Stickley’s brief notations in his charts on April 20, 1995, were inadequate in that it did not go through the series of questions he felt should be asked such as documenting the patient’s menstrual history, sexual history, whether or not she is taking her medicines, including birth control pills, or has forgotten to take some. He further stated the notation does not describe the pain, her bowel habits, or whether she had any chills or fever, which would be important in determining what is wrong. He also stated Dr. Stickley failed to conduct an abdominal and pelvic exam. Dr. Halbridge further testified that the notation “no coitus” was insufficient to indicate Brown had not had sex in the two months following her most recent pregnancy test. Dr. Halbridge indicated that the standard of care would require more detailed notations regarding sexual history and birth control use. He further testified that, in a twenty-year-old patient experiencing abdominal pain, his first instinct would be to conduct a pregnancy test to rule out 19ectopic or tubal pregnancy or impending miscarriage. Dr. Halbridge stated that the standard of care compelled the administration of a blood pregnancy test based on her complaints. He further testified it was a deviation from the standard of care to fail to conduct an abdominal examination based on the symptoms she presented. He went on to state, that no matter what information was given by the patient as to sexual history, the standard of care required a blood pregnancy test to rule out pregnancy before proceeding with any further tests.

Dr. Halbridge stated that the tests Dr. Stickley ordered deviated from the standard of care because none of her symptoms indicated they were necessary. He further stated that other tests existed to check for the problems Dr. Stickley suspected that Brown might have, which did not involve any radiation exposure, including sonograms to check for gallbladder disease, blood tests to check the functioning of the pancreas, and referral to a gas-troenterologist who can use a fiberoptic scope placed in the throat to see if an ulcer exists.

Dr. Halbridge also testified that Brown’s signature on the consent forms indicating that she was not pregnant is not an adequate way to ensure a patient is not pregnant. He stated it is the doctor’s responsibility to determine whether or not the patient is pregnant before ever sending her to radiology to undergo tests. Dr. Halbridge stated this failure was a deviation from the standard of care. Dr. Hal-bridge further testified that this responsibility cannot be delegated and that the standard of care required Dr. Stickley to conduct a pregnancy test. Dr. Halbridge also stated that he has never seen a case of diverticulitis in a twenty-year-old woman and that no rationale existed for the studies that Dr. Stickley ordered.

110On cross-examination, Dr. Halbridge stated that doctors vary in their way they keep their charts. After being shown Dr. Stickley’s charts he admitted that he did not know what Dr. Stickley’s notations and markings meant. He further admitted that Dr. Stickley did conduct a pelvic examination, but that he could not decipher the findings from examining Dr. Stickley’s charts. He further admitted that Dr. Stickley’s suspicions that Brown had an ulcer turned out to be correct. Dr. Hal-bridge also admitted that he has no idea how doctors in Crowley, Louisiana, conduct their business or what effects a Medicaid card would have on the administration of tests.

Dr. Halbridge was then questioned regarding Dr. Stickley’s contention that “no coitus” meant no sexual intercourse since the previous pregnancy test and whether a doctor should rely on the fact that a patient says she has not had sexual intercourse. He noted that sometimes patients forget whether or not they have had sexual intercourse, but admitted it would be hard to forget to having sex every day as testified to by both Brown and Jimmy Thomas.

Dr. Marshall St. Amant, an obstetrician/gynecologist with a specialty in maternal fetal medicine, was a member of the medical review panel that reviewed the claim against Dr. Stickley. Dr. St. Amant testified that it was his, and the other two panel members’ opinion, that Dr. Stickley did not breach the standard of care. Dr. St. Amant testified that, since the medical review panel convened, he further reviewed the expert testimony of Drs. Brenner, Willis, and Bushong and that his opinion that Dr. Stickley did not breach the standard of care had not changed. Dr. St. Amant further testified that Dr. Stick-ley’s charting methods are quite common and do not fall Inbelow the standard of care. Dr. St. Amant further testified that it has never been incumbent upon a physician to order either a serum or urine pregnancy test before proceeding with necessary tests such as x-rays. Dr. St. Amant further testified that the various tests ordered by Dr. Stickley did not breach the standard of care. He stated that the treating physician has an impression as to what may be wrong with the patient and is in the best position to make decisions about which tests to administer.

After reviewing the evidence and testimony submitted to the jury, even though we may have felt differently, we cannot say it committed manifest error in finding that Dr. Stickley did not breach the standard of care. A doctor’s professional judgment and conduct is to be evaluated in terms of reasonableness under the then existing circumstances, not in terms of results or in light of subsequent events. Charpentier v. Lammico Ins. Co., 606 So.2d 83 (La.App. 3 Cir.1992). Moreover, “[w]hen the expert opinions contradict concerning compliance with the applicable standard of care, the trial court’s conclusion on this issue will be granted great deference. It is the sole province of the factfinder to evaluate the credibility of such experts and their testimony.” Id. at 87.

Dr. Stickley testified that his records stating “no coitus,” indicated that Brown told him she had not had sexual intercourse since her last pregnancy test. Brown testified that she never told him that. Instead, she testified that she and Thomas were having sex on a daily basis. Dr. Stickley testified he is well aware of the risks that x-rays pose to pregnant women and that he would never have ordered the tests without first asking Brown if she was pregnant.

112Pr. Halbridge testified that he felt Dr. Stickley deviated from the standard of care basically because his documentation was inadequate and in failing to be 100% certain that Brown was not pregnant before administering the tests. Dr. St. Am-ant, on the other hand, testified that there is no standard requiring a doctor to administer a blood or urine pregnancy test before ordering x-rays. He testified that a doctor can make this determination based on numerous factors, such as his relationship with the patient and the responses he receives to the questions he asks. Finally, the patient herself noted on the forms that she was not pregnant, had no reason to believe that she was pregnant, and was not late for a menstrual period. There was a multitude of testimony regarding the amount of radiation, as well as the effects the radiation, on Brown’s fetus. Because we have found that the jury did not err in finding that Dr. Stickley did not breach the standard of care, we need not address these issues.

JNOV

Finally, Brown centers her appeal on the ordering of the various tests alleging that they were medically unnecessary, which she claims Dr. Stickley admitted. However, and as noted by the trial court in reasons for denying the JNOV, the

issue of whether or not Dr. Stickley deviated from the standard of care by ordering tests that were not medically indicated was not ... properly before the jury. The issue for the jury to decide was whether he should have given her a pregnancy test before ordering tests that exposed the fetus to radiation.

We agree. In Love v. Lewis, 00-06, pp. 4-5 (La.App. 3 Cir. 10/11/00), 771 So.2d 220 222, writ denied, 00-3506 (La.2/16/01), 786 So.2d 102, we stated:

|1sLa.Code Civ.P. art. 1811 provides the basis for filing a Motion for JNOV. However, Article 1811 does not set forth any specific grounds on which a trial court may set aside a verdict. Therefore, we rely on the well-settled jurisprudence that a JNOV may only be granted when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable people could not arrive at a contrary verdict on the facts at issue. Peterson v. Gibraltar Sav. & Loan, 98-1601(La.5/18/99); 733 So.2d 1198. Additionally, “[t]he trial court may not weigh the evidence, pass on the credibility of witnesses, or substitute the reasonable inferences of the facts for those of the jury.” McBride v. H. Brown Machine Shop, 98-1271, p. 3 (La. App. 3 Cir. 3/31/99); 732 So.2d 650, 652, writ denied, 99-1288 (La.7/2/99); 747 So.2d 20, quoting Webb v. Goodley, 512 So.2d 527, 530 (La.App. 3 Cir.1987). In reviewing the grant of a JNOV, an appellate court must first determine whether the trial court erred in granting the JNOV. The appellate court does this by applying the same criteria as the trial court. Anderson v. Neiv Orleans Public Service, Inc., 583 So.2d 829 (La.1991). If reasonable people could have arrived at the same verdict, given the evidence presented to the jury, then the JNOV is improper. Id.

We find no error in the trial court’s refusal to grant the motion for JNOV. Furthermore, even if we considered Brown’s argument, that the tests were unnecessary, we still conclude that reasonable people could find that Dr. Stickley did not breach the standard of care. Despite Brown’s allegations, the testimony reveals that Dr. Stick-ley ordered the various tests to rule out possible problems. It was only in hindsight that he determined that they were “medically unnecessary” as Brown did not have the problems he was suspicious of. Accordingly, this assignment of error is without merit.

CONCLUSION

The judgment in favor of the defendant-appellee, Dr. R. Foster Stickley, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Susan Brown.

AFFIRMED.

      . These doctors all testified regarding the amount of radiation that Arkel received as well as the effects, if any, of the radiation.


author:
|,BROWN, C.J.
      |! STEWART, J.,

text:
    CLADDIE SAVAGE d/b/a Piney Woods Game Club and Ark-La-Tex Game Club, Inc., Plaintiffs-Appellees v. Steve PRATOR, Sheriff of Caddo Parish and The Caddo Parish Commission, Defendants-Appellants.
    No. 38,955-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 6, 2004.
    Rehearing Denied Oct. 29, 2004.

      Charles Grubb, Alex Washington, Pet-tiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, by Edwin Byrd, for Appellants.
    Lunn, Irion, Salley, Carlisle, & Gardner, by Charles Salley, Richard King, for Ap-pellees.
    Before BROWN, STEWART; and GASKINS, JJ.
   |,BROWN, C.J.

Plaintiffs, Claddie Savage d/b/a Piney Woods Game Club, and Ark-La-Tex Game Club, Inc., filed this action in January 2004 against the Caddo Parish Commission and the Caddo Parish Sheriffs Office after being informed by the sheriff that an existing parish ordinance against cockfighting would be enforced. Savage purchased Piney Woods Game Club in September 2003, however, cockfighting tournaments had been held on its premises since 1991. Ark-La-Tex Game Club had been conducting similar tournaments since 1997. The trial court granted plaintiffs’ request for a preliminary injunction, finding that plaintiffs had made a prima facie showing that the parish had usurped' or improperly invaded the police power reserved to the state under the Louisiana Constitution. Plaintiffs’ requests for a declaratory judgment and permanent injunction were deferred until trial on the merits. The Cad-do Parish Commission has appealed. Finding no error, we affirm.

Discussion

La. Const, art. VI, § 9(A) and (B) provides:

(A) Limitations. No local governmental subdivision shall (1) define and provide for the punishment of a felony; or (2) except as provided by law, enact an ordinance governing private or civil relationships.
(B) Police Power Not Abridged. Notwithstanding any provision of this Article, the police power of the state shall never be abridged.

La. R.S. 14:102.1 is a state statute prohibiting cruelty to animals. In 1983, amid a controversy about cockfighting, the legislature amended this statute to add the following language:

For purposes of this Section, fowl shall not be defined as animals ...

J^La. R.S. 14:102.1D.

A Caddo Parish Ordinance prohibiting cruelty to animals was amended in 1987, with a January 1, 1988, effective date, to state that:

Animals shall mean any living vertebrate creature except human beings, including but not limited to ... birds, fowl, ...

A violation of this ordinance is punishable as a misdemeanor. Caddo Parish Code of Ordinances, Sections 4-1, 4-3, 4-14(B).

In its written reasons for judgment, the trial court clearly set forth the issue:

When citizens of this state and those visiting from outside this state cannot rely on state law to govern their conduct but must instead be fearful of criminal penalties from a parish ordinance which is in conflict with state law, the residual police power of the state has been abridged by the conflicting ordinance ....

We emphasize that the Caddo Parish ordinance prohibited cockfighting as opposed to an attempt to regulate its operation. See Roberson v. Bossier Parish Police Jury, 535 So.2d 1199 (La.App. 2d Cir. 1988).

The 1974 constitution creates two classes of home rule governments with different levels of immunity from control by the state legislature: (1) preexisting-home rule municipalities may exercise within their boundaries any legislative powers not in conflict with the 1974 state constitution; and (2) those charters enacted after the 1974 constitution may exercise home rule powers consistent with the constitution except when the exercise of such power is denied by general law. City of Baton Rouge v. Williams, 95-0308 (La.10/16/95), 661 So.2d 445.

|3Caddo Parish adopted a home rule charter in 1984 and is governed by La. Const. Art. VI, § 5(E) and thus, may pass ordinances consistent with the 1974 Constitution unless denied by general law.

In Francis v. Morial, 455 So.2d 1168, 1171 (La.1984), the supreme court concluded: “[A] home rule charter government possesses, in affairs of local concern, powers which within its jurisdiction are as broad as that of the state, except when limited by the constitution, laws permitted by the constitution, or its own home rule charter.”

Because this case concerns a misdemeanor, the limitation provided in La. Const, art. VI, § 9(A) on defining and providing for felonies need not be considered. Therefore, we must look to whether this statute conflicts with state law in such a way as to abridge the state’s police power. It is a general principle of constitutional law that a state cannot surrender, abdicate, or abridge its police power. La. Constitution art. VI, § 9(B); City of New Orleans v. Board of Commissioners of Orleans Levee Dist., 93-0690 (La.07/05/94), 640 So.2d 237. In City of New Orleans, the supreme court, while observing that La. Const, art. VI, § 9(B) was ambiguous, found that it was adopted as “... a principle of harmonizing the replete home rule powers granted local governments with a basic residuum of the state’s power to initiate legislation and regulation necessary to protect and promote the vital interests of its people as a whole.” Id. at 249.

The supreme court enunciated a method of analyzing possible abridgments of the state’s police power:

[A] litigant claiming that a home rule municipality’s local law abridges the police power of the state must show that the local |4law conflicts with an act of the state legislature that is necessary to protect the vital interest of the state as a whole. To establish that the conflict actually exists, the litigant must show that the state statute and the ordinance are incompatible and cannot be effectuated in harmony. Further, to demonstrate that the state statute is “necessary” it must be shown that the protection of such state interest cannot be achieved through alternate means significantly less detrimental to home rule powers and rights. (Citations omitted).

City of New Orleans, supra at 252.

Here, the parish ordinance makes illegal what the state has deemed to be legal. Clearly, the parish ordinance conflicts with an act of the state legislature. Although the ordinance took effect in 1988, plaintiffs or their predecessors had openly put on cockfights since 1991 and 1997.

La. Const, art. VI, § 9 recognizes the state’s vital interest to define and provide for the punishment of felonies but fails to make such a provision concerning misdemeanors. Implicitly, state law misdemeanors may be duplicated by local governments with penalties within the maximum range allowed for misdemeanors. City of Baton Rouge, supra. However, the Caddo Parish Commission did not duplicate but contravened a state statute.

In Knights of Columbus, Chapter No. 2409 v. Louisiana DPS, Division of State Police, 548 So.2d 936, 938 (La.1989), the supreme court explained:

The general rule is well settled. As in most jurisdictions, see H. McClintock, Handbook of the Principles of Equity § 173 (2d ed.1948), Louisiana courts hesitate to interfere via injunction [ ¡¡with the legitimate enforcement of criminal laws. To ensure that such interference does not lightly occur, this Court has set forth three requirements that must be met to justify enjoining pending or threatened criminal proceedings. A court should not grant such an injunction unless the plaintiff shows with reasonable certainty that (1) the statute is manifestly unconstitutional, (2) irreparable injury is threatened, and (3) existing property rights will be destroyed by enforcement.

The trial court correctly found that: with reasonable certainty the parish ordinance implicated in this case abridges the police power of the state; the threatened prosecution under an unconstitutional ordinance presumes irreparable injury; and impairs an existing property right. Thus, we affirm the judgment of the trial court.

AFFIRMED.

STEWART, J., dissents with written reasons.

|! STEWART, J.,

dissenting.

The majority opinion concludes that Section 4-14 of the Caddo Parish Code of Ordinances conflicts with state law. However, in my view, there is no conflict between Section 4-14 and La. R.S. 14:102.1 which supports injunctive relief. I respectfully dissent from the majority opinion.

Because cockfighting is not defined as a felony under state law, the parish ordinance is not prohibited by La. R.S. 14:143, which provides that “no governing authority of a political subdivision shall enact an ordinance defining as an offense conduct that is defined and punishable as a felony under state law.” Moreover, La. R.S. 14:102.1 is silent as to cockfighting. The legislature simply chose not to define fowl as animals in the provision criminalizing cruelty to animals. State law neither expressly authorizes, prohibits, nor attempts to regulate cockfighting. In the absence of state law on the matter, the parish ordinance is not invalid on its face. It does not contravene state law.

The majority finds that the standards for injunctive relief set forth in Knights of Columbus, Chapter No. 2409 v. Louisiana DPS, Division of State Police, 548 So.2d 936 (La.1989), have been met by plaintiffs. I disagree. Plaintiffs have not shown, and the trial court has not declared, that the ordinance is manifestly unconstitutional. The ordinance has not been shown to abridge the police power of the state.

The trial court made no finding that plaintiffs would suffer irreparable injury as a result of enforcement of the ordinance; rather, the trial court’s ruling was based entirely upon the propriety of the ordinance vis-a-vis state |¡>Iaw. The economic harm that would be suffered by plaintiffs as a result of enforcement of the ordinance is not the type of irreparable injury which justifies injunctive relief. See Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 319 (La.1981), cert. denied 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982), defining irreparable harm as a loss which “cannot be adequately compensated in money damages or for which such damages cannot be measured by a pecuniary standard.”

Finally, plaintiffs have not shown that existing property rights will be destroyed by enforcement of the ordinance. They may continue to operate their clubs pending the final outcome of this matter so long as they pursue other business activities that do not include eockfighting.

For these reasons, I would reverse the judgment of the trial court and remand for further proceedings.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, MOORE, and LOLLEY, JJ.

Rehearing denied.

STEWART, J., would grant rehearing.

      . An act of the legislature will be necessary if opponents of cockfighting wish to make it a criminal act. In the 2004 regular session of the legislature, a bill to prohibit cockfighting failed. The threatened enforcement, at issue in the instant case, occurred shortly after the proposed bill's failure. H.B. 681 of 2004.


author: _[gLOMBARD, J.

text:
    George SMITH, Jr. v. FRENCH MARKET CORPORATION, et al.
    No. 2003-CA-1412.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2004.

      John B. Fox, Robert W. “Doc” Booksh, Jr., John Fox & Associates, L.L.C., New Orleans, Counsel for PlaintiffyAppellant.
    Gerald A. Melchiode, Scott J. Bradley, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Counsel for Plaintiff/Appellee, Café Gumbolaya, LLC.
    Howard B. Kaplan, Bernard, Cassisa, Elliott & Davis, Metairie, Counsel for Defendant/Appellee, French Market Corporation and Acceptance Insurance Company.
    Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO Jr.
   _[gLOMBARD, J.

The plaintiff appeals from summary judgment rendered in favor of defendant/appellee French Market Corporation and third-party defendant/appellee Café Gumbolaya, L.L.C. After de novo review, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

The French Market Corporation (“FMC”) is a leasing entity for the City of New Orleans. On November 17, 1993, FMC entered into an agreement with the The Fish Market, Inc., for a commercial building. The lease was subsequently assigned to Café Gumbolaya, a locally owned restaurant, with all pertinent provisions remaining intact.

Provision XI of the lease agreement, entitled “Maintenance and Repair,” states in relevant part:

| ¿Tenant’s Duties: By entry hereunder, Tenant acknowledges that the Leased Premises and appurtenances are in good, clean and sanitary order and repair. Tenant, at his expense, shall maintain in good order and repair, including necessary replacements, the entire front entrance and all portions of the interior of the Leased Premises and appurtenances, including, without limitations, floor structures, exposed electrical and plumbing pipes, lines and fixtures, utility installations, doors and windows.

Provision XIX of the lease agreement, entitled “Indemnification,” states in relevant part:

Tenant covenants that he will hold and save Landlord harmless of and from any and all loss, cost, liability, damage or expense, including, without limitation, attorney’s fees and disbursements, caused by or arising from or in connection with injury or death of persons or damage to property in, upon or about the leased Premises or caused by or arising from or in connection with activities conducted thereon, or any act or omission of Tenant including with [sic] limitation, injury or death to Tenant, his agents, employees, licensees and invitees and damages to their property; provided, however, that Tenant shall not be required to indemnify Landlord for any damage or injury of any kind arising out of negligence or intentional acts of Landlord, its agents or employees.

On December 16, 1996, George Smith, Jr., a cook in the kitchen of Café Gumbola-ya, lost his balance and fell as he attempted to empty a seven-gallon pot of boiling water and pasta into a utility sink. On December 10, 1997, he filed suit against FMC and the City of New Orleans, alleging that the floor of the kitchen was unreasonably dangerous because it was flat and constructed of excessively slippery material and that the defendants had actual and constructive notice of these defects. On July 17, 1998, FMC filed a third-party demand against Gumbolaya, L.L.C, d/b/a Café Gumbolaya (“Gumbolaya”) and its insurer Essex Insurance Company (“Essex”). Gumbolaya and FMC filed separate motions for summary judgment seeking dismissal of the appellant’s claims against FMC, |4alleging that pursuant to the lease agreement FMC contractually relinquished any alleged defects within the leased premises and, accordingly, summary judgment was appropriate because the undisputed evidence clearly established that FMC had no knowledge or notice of the alleged defect as required by La.Rev.Stat. 9:3221. Following a hearing on the motions, the trial court rendered a written judgment on May 9, 2003, granting both motions for summary judgment and dismissing the plaintiffs claims against FMC.

Discussion

On appeal, motions for summary judgment are reviewed de novo, using the same criteria governing trial court consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991); Spicer v. Louisiana Power & Light Co., 97-2406 (La.App. 4 Cir. 4/8/98); 712 So.2d 226, 227. Because summary judgment is now favored in Louisiana, the rules regarding such judgments should be liberally applied. Spicer, 712 So.2d at 227. The test for whether or not summary judgment is appropriate in this case is found in Article 966(C) of the Louisiana Code of Civil Procedure, which states:

(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. (2) 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 Isone or more 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.Code Civ. Proc. art. 966.

In the instant case, it is uncontroverted that the plaintiff/appellant was an employee of Café Gumbolaya in the course and scope of his employment when the accident occurred and, ordinarily, an employee’s sole remedy is found in the workers’ compensation statutes. The plaintiff in this case seeks to circumvent the statutory workers’ compensation scheme by filing-suit against his employer’s lessor and, thus, this court must determine whether there is any genuine issue of material fact concerning liability of the lessor.

To establish liability on the part of a lessor who has passed on responsibility for the condition of his property to his lessee under La.Rev.Stat. 9:3221, a plaintiff must establish that (1) he sustained damages; (2) that there was a defect in the property; and (3) that the lessor knew or should have known of the defect. Robinson v. Archdiocese of New Orleans, 1998-1238, p. 4 (La.App. 4 Cir. 3/31/99), 731 So.2d 979, 981; see also Marcadas v. Cleanerama, Inc., 2002-0357, p. 3 (La.App. 4 Cir. 9/25/02), 831 So.2d 288, 289 (there appear to be two factual inquiries: first, was there a defect in the property; second, did the lessor know or should he have known of the | nsaid defect). La.Rev.Stat. 9:3221, which is entitled, “Assumption of responsibility by lessee; liability of owner,” states:

The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

In support of their motions for summary judgment, appellees submit (1) the pertinent lease agreements; (2) deposition testimony of the plaintifflappellant stating that there was no water on the floor at the time of his accident and that to his knowledge no one else had ever slipped on the kitchen floor; (3) the deposition testimony of Steven Hand, executive director of FMC, who stated that he knew of no structural defects prior to leasing the premises to Gumbolaya, that under the terms of the lease the lessee was responsible for inspecting the premises to insure it was in a safe and appropriate condition for operation of a restaurant prior to taking possession of the premises, and that FMC knew of no other persons who were allegedly injured due to the condition of the floor; (4) the affidavit of Tammy Shield, kitchen manager for Gumbolaya, who stated that Gumbolaya’s employee’s were responsible for the floor in the kitchen and that, other than the plaintiffs slip and fall, she was unaware of any accidents that were allegedly caused by the slipperiness of the kitchen floor; and (6) the deposition testimony of Gerald Senner, owner of Gumbolaya, who stated that he never made any complaints to FMC about the condition of the kitchen floor. This evidence supports a finding that there is an absence of factual support for one or more elements of plaintiff/appellant’s claim, i.e., whether there was a defect in the property and whether FMC knew or should have known of the defect.

17Accordingly, under La. Code Civ. Proc. art. 966, to survive the appellees’ motions for summary judgment, the plaintiff/appellant must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, i.e., that there was a defect in the property and that FMC knew or should have known of the defect. To meet this burden, the plaintiff/appellant submits deposition testimony of Donald Maginnis, a licensed architect, who opines that the kitchen floor is defective because glazed tile flooring is inappropriate for kitchen use and the floor lacks a positive slope to drain, and deposition testimony of Robert Lipp, a mechanical engineer, who opines that the kitchen floor does not have the minimum coefficient of friction. We need not determine whether this evidence is sufficient to prove a defect for which the lessor would be liable because there is no evidence that FMC knew or should have known of the alleged defect.

Conclusion

Because we find no evidence in the record that the plaintiff/appellant can meet his burden of proving liability on the part of FMC at trial, i.e., that FMC knew or should have known of the alleged defect, we affirm the trial court’s ruling.

AFFIRMED.

      . City-owned property is leased to FMC which then subleases the property to various entities.

      . We note that, although the lease agreement was executed on November 17, 1993, Section I of the lease states that "[t]he term 'Commencement Date of the Lease' means November 1, 1980.”

      .The lease agreement makes no reference to a street or postal address, describing the property as 4292 square feet "adjacent to Building E on the upriver or St. Philip Street side.” Plaintiff’s petition indicates that the premises are located at 1000 N. Peters.

      .By amended petition filed on December 12, 1997, Acceptance Insurance Company (FMC's insurer) was named as a defendant.

      .The record indicates that The City of New Orleans has filed an exception for dismissal from this suit

        .See also La.Code Civ. Proc. art. 966(A)(2). "Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.”

      . In pertinent part, the provisions of La.Rev. Stat. 23:1032 states: "The exclusive remedy for an employee against his employer available to an employee for injuries resulting from an accident occurring during the course and scope of his employment is in worker's compensation....” This statute has been interpreted to limit an injured employee's remedy to workers' compensation despite the fact that his employer has assumed responsibility for the premises pursuant to a lease. Dumestre v. Hansell-Petetin, Inc., 96-1778, p. 6 (La. App. 4 Cir. 1/29/97), 688 So.2d 187, 190.