author: | .PEATROSS, J.

text:
    Roderick D. LAFITTE, Plaintiff-Appellant, v. RELIANT ENERGY RESOURCE CORPORATION, Defendant.
    No. 37,709-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 17, 2003.

      Roderick D. Lafitte, In Proper Person.
    Cynthia T. Batiste, Baton Rouge, for Appellee, State of Louisiana, Department of Labor.
    Before BROWN, PEATROSS & MOORE, JJ.
   | .PEATROSS, J.

The district court affirmed the decisions of the Board of Review (“the Board”) and the Administrative Law Judge (“ALJ”) finding that Roderick Lafitte was disqualified under La. R.S. 23:1601(2)(a) from receiving unemployment compensation benefits. Mr. Lafitte appeals in proper person, seeking reinstatement of his benefits. The Department of Labor, Office of Regulatory Services (“the Department”), is aligned with Mr. Lafitte, arguing that the district court’s judgment should be reversed. For the reasons stated herein, we reverse and remand.

FACTS

Mr. Lafitte worked for Reliant Energy Corporation (“Reliant”) from June 19, 2000, to June 6, 2002, as a customer service representative answering telephone calls in the call center. On June 3, 2002, Reliant received a customer complaint that had been lodged with the Arkansas Public Service Commission regarding a call made to Reliant’s customer service department which was received and handled by Mr. Lafitte. The caller alleged that Mr. Lafitte was rude to her when she called Reliant to get her account number. When Mr. Lafitte answered the call from complainant, he informed her that he needed to complete a verification process before he could give her an account number. Reliant’s policy was that, before any information could be disclosed to a caller, certain information regarding the account had to be verified, including social security number, address and phone number on the account. The transcript of the call, which is contained in the record, reveals that the caller became agitated early in the telephone | ¡.conversation and, when asked to verify her address, she verified her street and house number, but refused to verify the city, state and zip code. The caller told Mr. Lafitte that she was standing in the hot sun and needed her account number in order to pay her bill. Mr. Lafitte again attempted to have the caller verify her full address, but the caller became irate. During the remainder of the call, Mr. Lafitte repeatedly explained to the caller that he had to complete the verification process before he could give her the account number and the caller repeatedly demanded the account number or to speak with a supervisor. Mr. Lafitte informed the caller that he would transfer her to a supervisor as soon as he had the required verification information. It is unclear from the transcript how the call was terminated; however, Mr. Lafitte testified that the caller disconnected the call.

Mr. Lafitte also testified that he was required by Reliant’s policy to verify the information, including the city, state and zip code, and a witness for Reliant corroborated that this procedure was correct. Reliant office personnel, however, reviewed the call and determined that it was not handled properly and according to company policy by Mr. Lafitte. Sherita Cooks, Mr. Lafitte’s supervisor, testified that, as a “seasoned” representative, Mr. Lafitte should have handled the caller differently by giving the account number and then verifying the address. Mr. Lafitte, however, submits that he would have been knowingly violating company policy to give the account number prior to completing verification, a violation for which he could have been terminated. In addition, Mr. Lafitte testified that he had been informed by Reliant that representatives were ^transferring too many calls to supervisors; and, therefore, in order to keep from being penalized on his quality assurance score, it was his practice to complete verification on the account prior to transferring a call to a supervisor. Mr. Lafitte was ultimately discharged for the stated reason that he was “mishandling customer service calls.”

After his termination, Mr. Lafitte applied for unemployment compensation. The Department of Labor (“the Department”) determined that Mr. Lafitte was discharged because of his “inability to meet the employer’s requirements.” No misconduct was found and no disqualification assessed and Mr. Lafitte began receiving benefits. Reliant appealed. On July 31, 2002, a hearing was held before the Appeals Tribunal on the issue of whether mishandling customer service calls is misconduct connected with the employment under La. R.S. 23:1601. Finding that Mr. Lafitte’s handling of the call was “misconduct” connected with his employment, the ALJ reversed the decision of the Department and assessed a disqualification from benefits.

Mr. Lafitte appealed this decision to the Board of Review, which affirmed the ALJ’s decision, with two dissenters opining that the employer failed to show misconduct as contemplated by the statute. Mr. Lafitte then appealed the Board of Review’s decision to the First Judicial District Court. The district judge affirmed the Board of Review’s decision without written reasons. This appeal by Mr. Lafitte ensued.

DISCUSSION

Judicial review in an unemployment compensation case is limited by La. R.S. 23:1634. The reviewing court must determine (1) whether the findings of fact by the Board of Review are supported by sufficient evidence, and, if so, (2) whether the decision of the Board is correct as a matter of law. Toney v. Francis, 618 So.2d 597 (La.App. 2d Cir.1993). In the absence of fraud, the Board’s findings are conclusive as to the facts of the case, confining judicial review to legal questions only. Id., citing Charbonnet v. Gerace, 457 So.2d 676 (La.1984).

In the case sub judice, the Board accepted the ALJ’s findings of fact and these are not disputed. We, therefore, review only the legal question of whether or not Mr. Lafitte’s conduct constitutes misconduct connected with his employment under La. R.S. 23:1601 so as to disqualify him from receiving unemployment benefits.

La. R.S. 23:1601(2)(a) provides, in pertinent part, as follows:

If the administrator finds that he has been discharged by a base period or subsequent employer for misconduct connected with his employment. Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.

The jurisprudence has consistently interpreted misconduct to mean an act of willful or wanton disregard of the employer’s interest, a deliberate violation of the employer’s rules, a direct disregard of standards of behavior that the employer has a right to expect from his employee, or negligence in such a degree or recurrence as to manifest culpability, wrongful interest or | fievil design or show an intentional and substantial disregard of the employee’s duties and obligations to the employer. Banks v. Administrator of the Department of Employment Security of the State of Louisiana, 393 So.2d 696 (La.1981); Wood v. Louisiana Department of Employment Security, 25,545 (La.App.2d Cir.2/23/94), 632 So.2d 899, citing Charbonnet v. Gerace, supra; Hardeman v. Blache, 605 So.2d 671 (La.App. 2d Cir.1992); Lowery v. Whitfield, 521 So.2d 815 (La.App. 2d Cir.1988); Jenkins v. Blache, 471 So.2d 909 (La.App. 2d Cir.1985); Simmons v. Gerace, 377 So.2d 407 (La.App. 2d Cir. 1979). The supreme court has held that an employee can be unsatisfactory to the employer without being guilty of disqualifying misconduct; an intent to do wrong must be present. Banks, supra. Further, appellate court decisions have found that unsatisfactory work, without the intent to do wrong, is not misconduct under 23:1601. Lowery supra; Simmons, supra; Thomas v. Blache, 488 So.2d 1282 (La.App. 4th Cir.1986).

A violation of an employer’s rule does not per se constitute misconduct sufficient to disqualify a claimant from receiving unemployment benefits. Whether a policy violation warrants withholding unemployment benefits is a question which must be determined not by examining the employer’s rule, but by statute. Robinson v. Brown, 129 So.2d 45 (La.App. 2d Cir.1961); Savoie v. Labove, 96-952 (La.App. 3d Cir.3/5/97), 692 So.2d 626.

The unemployment statute must be liberally construed to serve its remedial purpose. Wood, supra, citing Parker v. Gerace, 354 So.2d 1022 (La.1978). Thus, misconduct must be construed so as to favor the awarding of benefits rather than disqualification. Id., citing Operators, Inc. v. Comeaux, 579 So.2d 1228 (La.App. 3d Cir.1991); Savoie, supra. The employer has the burden of proving by a preponderance of the evidence that a discharge resulted from disqualifying misconduct. Banks, supra; Hardeman, supra.

Mr. Lafitte argues that Reliant did not meet its burden of proving by a preponderance of the evidence that he was discharged for misconduct. He submits that the finding that his actions constitute misconduct connected with the employment is incorrect as a matter of law. According to Mr. Lafitte, failure to handle an irate caller in a more “customer-friendly” manner, absent a willful or wanton disregard for Reliant’s interests or an intentional, deliberate violation of Reliant’s rules, does not constitute disqualifying misconduct. The Department aligns itself with Mr. Lafitte on appeal, concluding that Mr. Lafitte was trying to follow company policy by completing the verification process as he had been trained to do. According to the Department, at most, Mr. Lafitte’s conduct could be construed as inadequate job performance and the inability to control an irate customer, but is not the kind of willful misconduct that would disqualify him from benefits under the statute. We agree with Mr. Lafitte and the Department.

Mr. Lafitte was trying to follow Reliant’s written policy regarding verification of information on which he had been extensively trained. At the hearing, it was suggested by Reliant’s witness that Mr. Lafitte could have prompted the caller with the city and state and then asked her to agree 17with the information as an alternative tactic to verify the information. A reading of the transcript of the call, however, reveals that Mr. Lafitte did prompt the caller with the city and state, but she was irrational at that point and would not verify the information. Reliant determined that Mr. Lafitte’s handling of the remainder of the call was inappropriate and unsatisfactory. Mr. Lafitte agreed in his testimony that, in hindsight, he could have handled the situation differently. In any event, while the mishandling of the call may provide a justifiable basis for discharge, it does not rise to the level of disqualifying misconduct. There is no evidence of any intent on the part of Mr. Lafitte to act in contravention of any Reliant policy or interest, nor is there any evidence that his actions were in willful or wanton disregard of Reliant’s interest. He explained to the court that there are many different tactics a representative may use in trying to defuse and accommodate frustrated callers and that it is a trial and error process. At most, Mr. Lafitte may have used poor judgment handling this particular caller. This is an issue of job performance and ability, not intentional misconduct warranting disqualification from unemployment benefits.

In summary, the case sub judice is simply a situation where an employee was fired because he was unable to perform the job for which he was hired to the expectations of the employer. As such, Mr. Lafitte breached the implicit “qualification of employment” justifying his discharge, but the jurisprudence uniformly holds that substandard ^performance or incompetence does not rise to the level of disqualifying misconduct. Wood, supra. Since we agree with the Department’s initial assessment that there was no disqualifying misconduct connected with Mr. Lafitte’s employment regarding his discharge, we reverse the judgment of the district court and remand for the determination and reinstatement of benefits due Mr. Lafitte.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. It is now ordered, adjudged and decreed that the Board of Review, Office of Regulatory Services, State of Louisiana, issue an order directing payment to Appellant, Roderick D. Lafitte, of the unemployment benefits to which he is entitled. The employer, Reliant Energy Resource Corporation, is cast for all costs.

REVERSED AND REMANDED.

      . The employer, Reliant Energy Corporation, did not file a brief on appeal.

      . We note that the judgment appealed from incorrectly states that the evidence was found to be in favor of the State of Louisiana Department of Labor, Office of Regulatory Services, but then correctly states that the judgment affirms the finding of the Board of Review and that Mr. Lafitte was disqualified from receiving unemployment benefits.

      . We note Ms. Cooks testified that she had counseled Mr. Lafitte on prior occasions regarding improvement of his "soft skills” or handling of customer complaints tactfully and respectfully. She also testified, however, that Mr. Lafitte was capable of providing quality customer service and that she had complimented him in the past when he exhibited such service to customers.


source: Caselaw Access Project

author: | TRAYLOR, Judge Pro Tempore.

license: Public Domain

text:
    Merrilee G. ALBRIGHT, Julie M. Lafargue, Dolores George Lavigne, Ann Mathison McLaurin and Jody L. Roberts, Plaintiffs-Appellants, v. SOUTHERN TRACE COUNTRY CLUB OF SHREVEPORT, INC. and Club Corporation of America, Defendants-Appellees.
    No. 37,725-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 17, 2003.
    Rehearing Denied Nov. 10, 2003.

      Davidson, Jones & Summers by Allison A. Jones, Shannan L. Hicks, Shreveport, for Appellants.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Robert A. Dunk-elman, Shreveport, for Appellees.
    Before GASKINS, DREW and TRAYLOR (Pro Tempore), JJ.
   | TRAYLOR, Judge Pro Tempore.

Merrilee G. Albright, Julie M. Lafargue, Dolores George Lavigne, Ann Mathison McLaurin and Jody L. Roberts (the “appellants”) appeal the judgment of the First Judicial District Court for the Parish of Caddo, Louisiana in favor of Southern Trace Country Club of Shreveport, Inc. and Club Corporation of America.

Facts

Southern Trace Country Club of Shreveport, Inc. and Club Corporation of America (the “appellees”) are the owners of a country club facility located in Caddo Parish, Louisiana known as Southern Trace Country Club (“Southern Trace”). In March 2000, Julie Lafargue (“Lafargue”), a member of Southern Trace, and two of her female guests arrived at the club, ostensibly to have dinner. One of the guests was Merrilee Albright (“Albright”) and the other has gone unidentified. Lafargue, Al-bright and the other guest entered a dining room and lounge known as the “Men’s Grille” and requested to be served; however, employees of Southern Trace denied them service, informed them they were not allowed in the Men’s Grille and told them that they would have to leave. Southern Trace Country Club of Shreveport, Inc. admitted in its Answer that as Lafargue and her g-uests left the Men’s Grille, a male patron yelled out to them, “[D]on’t let the door hit you on the ass on your way out.”

Subsequently, in April 2000, Lafargue and Albright, joined by Dolores Lavigne, Ann McLaurin and Jody Roberts, filed suit against the appellees claiming that due to their gender, they have been denied access to and service in the Men’s Grille at Southern Trace. The appellees’ policy | ¡.regarding the Men’s Grille is as follows: “Unless otherwise authorized by the Board of Directors [the Men’s Grille] is restricted to the use of men and their adult male guests” (the “policy”). The appellants further claimed that Southern Trace is a public area, accommodation or facility and that, as such, it was in violation of La. Const, art. I, § 12. Appellants sought a declaratory judgment to state the policy to be discriminatory. They also requested a permanent injunction to permit them and all female members and their respective guests access to and services by the Men’s Grille.

Integral to the trial court’s analysis was a decision regarding whether Southern Trace is a private club or a public accommodation. A private club is immune to claims of discrimination, while a public accommodation must comply with La. Const. art. I, § 12. In its opinion, the trial court made this analysis:

The threshold question is whether Southern Trace Country Club is a ‘public facility,’ in which case, [La. Const, art. I, § 12] applies; or rather a ‘private club,’ in which case it does not. The Court is guided by Revised Statutes 49:146 which provides an eight (8) fold criteria to determine if an organization is a private club; to wit:
(a) Selectiveness of the group in addition of members;
(b) Existence of formal membership procedures;
(c) Degree of membership control over internal governance, particularly with regard to new members;
(d) History of organization;
(e) Use of club facilities by nonmembers;
(f) Substantiality of dues;
(g) Whether the organization advertises; and
(h) Predominance of a profit motive.
The evidence clearly shows that Southern Trace Country Club, when evaluated by statutory requirements, is a public [¡¡facility. There is no real se-lectiveness in the addition of new members. Bulk mailings soliciting membership and addressed to ‘resident,’ are sent by zip code. There was no evidence of membership requirements other than the ability to pay dues and initiation fees; which Southern Trace Country Club is willing to finance at 10% [APR].
The club is completely run by Southern Trace Country Club of Shreveport, Inc. The members have no voice in the running of the club or the selection of the Board of Directors. The history of the organization is simply an effort to provide a desired product and/or service for a fee to make a profit. Club facilities are routinely used by non-members, the owner corporation budgets for considerable annual advertisement, and the profit motive predominates.

The trial court’s conclusion that Southern Trace was clearly a public accommodation meant it was subject to the provisions of La. Const, art. I, § 12. That finding has not been appealed.

Even though the trial court further determined that Southern Trace was a public accommodation, the court found that the exclusion of women from the Men’s Grille did not constitute “arbitrary, capricious, or unreasonable discrimination based on ... sex.” Appellants seek an appeal from this portion of the trial court’s ruling.

Discussion

On appeal, appellants argue that the trial court erred when it failed to determine that Southern Trace’s policy to exclude women from the Men’s Grille was a violation of La. Const, art. I, § 12.

Appellees contend that the issues involved are questions of fact subject to manifest error review. However, the trial court was called to interpret an article of the Constitution, which is clearly a question of law. Thus, a de novo, rather than a manifest error, review of the matter is |4warranted. See, e.g., Cleco Evangeline, LLC v. Louisiana Tax Com’n., 2001-2162 (La.04/03/02), 813 So.2d 351, 353.

The trial court determined that Southern Trace is a public facility and our review of the record supports this finding. As a public facility or accommodation, Southern Trace is subject to La. Const, art. I, § 12, which states, in pertinent part, as follows: “In access to public areas, accommodations, and facilities, every person shall be free from ... arbitrary, capricious, or unreasonable discrimination based on age, sex, or physical condition” (“Section 12”).

The jurisprudence interpreting Section 12 is scant; however, La. Const, art. I, § 3, or Louisiana’s “equal protection” law (“Section 3”), contains almost identical language to Section 12. Section 3 has been widely interpreted by this state’s courts, specifically regarding the level of scrutiny used to assess claims of gender discrimination under Section 3. Therefore, we will employ the same scrutiny in analyzing this claim being made under Section 12.

Equal protection challenges under Section 3 are analyzed based on the discriminatory classifications enumerated therein. An intermediate level of scrutiny is reserved for laws which classify persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliation. Manuel v. State, 95-2189 (La.03/08/96), 692 So.2d 320. When a court reviews such a classification, the burden is on the proponent of the classification and the standard of review is heightened, requiring the proponent to establish that the classification is not arbitrary, capricious or unreasonable because it substantially furthers an appropriate governmental objective. Manuel, supra. Thus, we will examine Southern Trace’s policy under such an intermediate scrutiny to determine whether Southern Trace established that the classification (i.e., the exclusion of female members) was not arbitrary, capricious, or unreasonable because it substantially furthers an appropriate objective.

In this matter, three objectives for the discrimination were articulated or inferred: economic/market factors, privacy, and male preference. The trial judge reasoned that “economic and competitive market factors, rather than discrimination,” drove Southern Trace’s policy. At trial, appel-lees submitted testimony by Johnson Ramsey (“Ramsey”), Southern Trace’s developer, who explained that almost every other similar country club had a men’s only dining area, although he did not specify whether these were private or public clubs. Additionally, Brian Walsh (“Walsh”), manager of Southern Trace, testified regarding the approximate revenue generated by the Men’s Grille versus the ladies’ dining facility-

In Easebe Enterprises, Inc. v. Alcoholic Beverage Control Appeals Bd., 141 Cal. App.3d 981, 190 Cal.Rptr. 678 (2d Dist. 1983), when men were not admitted to a Chippendale’s dance club, the nightclub argued that such admission would be the commercial demise of its business because women |fiwould no longer want to attend, and the court stated that “[a]n entrepreneur’s discriminatory practice based upon ostensible rational economic self-interest still violates” that state’s statute against arbitrary discrimination based on gender.

The production of more revenue by the Men’s Grille is not a valid reason to discriminate in this ease. Economic or market factors are not an appropriate objective when the discrimination is the reason for economic success, or said another way, when the club strives to make more money because it discriminates. Based upon the facts before us, Southern Trace has not shown that economie/market factors are an appropriate objective making the discrimination against women in this public club grill reasonable.

The underlying theme of the trial judge’s decision was that the discrimination was reasonable because of privacy concerns. Certainly, privacy concerns are appropriate objectives in places where modesty should prevail, such as dressing or locker rooms. This dining area is contiguous to the men’s locker room, with an open entry to the locker room. However, the facts belie that this was an area with privacy concerns. The Men’s Grille was often open to the public, and used frequently by both sexes during holiday seasons. The room is also used by both genders for various tournament events and private parties during the year. Walsh testified that[7during such events, a screen is erected clearly separating the men’s locker room and blocking the view. He characterized this accommodation as being easily made. The club house rules also require “casual but appropriate attire” in the Men’s Grille. In fact, Ramsey testified that there were four tables in the actual locker room where men could eat and drink in a state of undress. Further, Southern Trace did not present any evidence regarding the gender of the waitstaff in the Men’s Grille, which indicates the room apparently was not private enough to exclude female servers. These factors dispel the notion that the Men’s Grille is actually part of the men’s locker room. Southern Trace was unable to carry its burden that this area should be cloaked with privacy concerns, thereby failing to show this was an appropriate objective for the discrimination.

The preference of the male membership for a men’s only dining facility is also suggested as a reason for the discrimination. The record blatantly shows that the preference of some male members was the primary force behind the policy. In fact, when Walsh was asked what his understanding was regarding the reason for the policy, he explained, “... the facilities in the men’s room — in the men’s area there— were there just for the enjoyment of the men when they’re out playing golf, ...” When asked if there was any other reason for the policy other than the enjoyment of the men, Walsh responded, “No.” Additionally, in order to establish that a substantial number of male members of Southern Trace felt strongly in |sfavor of maintaining the Men’s Grille, Ramsey testified that a meeting of 85-110 male members of Southern Trace was called by an individual member to address the issue raised by the appellants’ claims. Ramsey also stated that if a vote of the membership were conducted, the result would be to keep things the same.

Regarding the reasoning that some of the men simply prefer the male exclusivity of the Men’s Grille, we need not even employ the heightened scrutiny used to examine gender distinctions, but simply look to the clear and unambiguous wording of Section 12 that “every person shall be free from ... arbitrary, capricious, or unreasonable discrimination based on ... sex-” (Emphasis added). Capricious is defined as “governed by or showing caprice; unsteady; changeable; fickle; fanciful; as, a man of a capricious temper.” Webster’s New Universal Unabridged Dictionary, Second Edition, 1972. Further, caprice is defined as “whim, arbitrary, seemingly unfounded motivation. Disposition to change one’s mind impulsively.” Black’s Law Dictionary, Fifth Edition, 1979. Further, in Jemison v. City of Kenner, 277 So.2d 728, 729 (La.App. 4th Cir. 1973), writ denied, 281 So.2d 753 (La.1973), the court noted that “... The words arbitrary and capricious are practically synonymous and mean without reasonable cause and do not necessarily imply an opprobrious connotation. Arbitrary action is based upon one’s will and usually implies an abuse of one’s authority or power .... ” (Citation omitted.) (Emphasis added.) A reasoning that those making the sex-based exclusion simply prefer the policy is by definition arbitrary and capricious, thus making the policy | gdearly the illegal discrimination of women under Section 12. The objective or justification of some men’s preference, on its face arbitrary and capricious, is woefully insufficient to support the appellees’ policy.

“Lack of malevolent intent does not prevent a policy from being discriminatory when it results in treatment of a person in a manner which, but for that person’s sex, would be different.” See Allison-LeBlanc v. Department of Public Safety and Corrections, Office of State Police, 95,0295 (La.App. 1st Cir.10/06/95), 671 So.2d 448.

Other jurisdictions have held that such similar arbitrary or capricious gender distinctions in places of public accommodation are illegal. In Franklin Lodge of Elks v. Marcoux, 2002-571 (N.H.06/13/03), 825 A.2d 480, female applicants brought a gender discrimination action against the Franklin Lodge of Elks Club based on New Hampshire’s similar statute prohibiting gender discrimination in places of public accommodation. In that case, the court determined that the discrimination was “clearly intentional,” where members remarked that “the Elks was a ‘man’s club,’ ” and “the women were denied membership solely because of their gender.” Id. at 488.

In Wanders v. Bear Hill Golf Club, Inc., 1998 WL 1181150 (Mass.11/30/98), the female members of Bear Hill Golf Club brought suit when they were denied play in weekend golf tournaments solely because of their gender. Under Massachusetts’ law which prohibits discrimination based upon gender in places of public accommodation, the court determined that the private club was a place of public accommodation, and that some club |inmembers (i.e., women) were prevented from using the club’s facilities as freely as others (i.e., men), and that even if the tournaments were “separate but equal,” the club would still be violating the law, because the club was discriminating against its members solely on grounds of gender. Id. at 3.

Finally, we note the recent opinion, Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306, 791 N.E.2d 903 (06/13/2003), review denied, 440 Mass. 1101, 795 N.E.2d 573 (09/05/03). In that case, nine female members of the Haver-hill Golf & Country Club sued the club alleging that as a public accommodation, it had unlawfully discriminated against them based solely on their gender. The trial court awarded the plaintiffs $1,967,400 in damages as well as injunctive relief requiring the cessation of the Club’s unlawfully discriminatory acts. Although the club’s actions included more egregiously discriminatory actions than in the case sub judice, one of the acts noted did include the club’s 19th Hole, a men’s-only grill, for which the club manager was told he “must try to keep the women out....” Id. at 311, 791 N.E.2d 903. After discussing the jury’s damage award, the Massachusetts court made the following comments, worthy of repeating herein:

Playing golf was not one of the unalienable rights of 1776, but it is naive not to recognize the degree to which golf links and the country club are the locale for developing professional and business contacts. Golf and the country club lubricate the advance of careers. Deals are cut on the fairway and in the clubhouse.

Id. at 915. (Emphasis added, footnote omitted).

Ironically, one undeniable economic factor does exist by virtue of Southern Trace’s policy. That is the economic discrimination that is ^perpetuated against women by excluding them from the social clubs and “back rooms” where business relationships are established and deals are made. In the year 2003, Louisiana women work side by side with men in the courtrooms, operating rooms and boardrooms. There is no reason why they should still be excluded from country club dining rooms which are deemed to be public accommodations.

Southern Trace has chosen to make itself a “public accommodation,” and, as such, it has subjected itself to the mandates of La. Const, art. I, § 12. The record shows that the exclusion of women from the Men’s Grille only advances the convenience and preferences of the male members who utilize it. There is no evidence that a substantial objective is served by excluding women from a portion of Southern Trace. The policy of Southern Trace not to serve women in the Men’s Grille is a violation of our state Constitution that cannot be allowed to stand.

Economic/market factors are not an appropriate objective where Southern Trace hoped to profit from the fact that it discriminated against women in the Men’s Grille. Although privacy concerns could be a legitimate objective, Southern Trace was unable to carry its burden that the Men’s Grille was an area that should be private. Finally, male preference in a public club can never be an appropriate objective by which to justify discrimination. Thus, we conclude, as a matter of law, that the holding of the trial court was in error.

| ^CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed. Costs of this appeal are assessed to Southern Trace Country Club of Shreveport, Inc. and Club Corporation of America.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, DREW, MOORE, and TRAYLOR, JJ.

Rehearing denied.

      . Such an analogy is proper. Constitutional provisions in pari materia, or of the same subject matter, should be construed together. Articles of the Constitution may be taken and construed together as one system and as explanatory of one another. Succession of Lauga, 624 So.2d 1156 (La.1993); Cohort Energy Co. v. Caddo-Bossier Parishes Port Com’n, 37,-449 (La.App.2d Cir.08/20/03), 852 So.2d 1174. When related articles are not construed as such, “they might become inharmonious and inconsistent.” See Gruner v. Police Jury of Claiborne Parish, 119 La. 551, 554, 44 So. 295, 296 (1907); see also La. C.C. art. 13. In fact, the trial court noted that a heightened level of scrutiny was warranted in this case. It stated that a "heightened standard of review ... has been applied to sex based classification[s].... ”

      . The economics objective further raises tire question of whether the economics driving the policy is that appellees fear losing revenue due to the demise of business in the Men's Grille if women were allowed in. The record reflects that at a Board of Governors meeting on December 7, 1999, the subject of the policy was brought to its attention and discussed. It was noted that if the policy remained, Southern Trace might lose three to ten memberships, but if the policy was changed, the club risked losing thirty to forty memberships. At that meeting, it was stated that to risk the steady income of the Men’s Grille was a bad decision.

      . In 2000, when this matter arose, the Rules and Regulations required "casual but appropriate attire” in the dining rooms. The only dining rooms listed were the Azalea Grille and the Men's Grille. Interestingly, the rules were subsequently amended, changing the segment titled "Men’s Grille” to “Men's Locker Area,” although it kept another segment titled "Locker Rooms and Exercise Room.”

      . According to the 2000 United States census, women in Louisiana make up 51.6 percent of the population.

      . Or, for that matter, that a substantial objective is served by excluding the male members from an equivalent dining room set apart for the women.


author: JjWILLIAMS, Judge.

text:
    Janice SULLIVAN, Plaintiff-Appellant, v. Priscilla WALLACE, et al., Defendant-Appellee.
    No. 37,399-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 20, 2003.

      J. Craig Jones, Craig R. Hill, Oakdale, for Appellant.
    Charles E. Weaver, Homer, for Appel-lee, Priscilla Wallace.
    Robert L. Odinet, Baton Rouge, for Ap-pellee, Scottsdale Insurance Company.
    Martin S. Craighead, Monroe, for Appel-lee, Harmon Wood Company.
    James L. Fortson, Jr., Shreveport, for Appellee, Bruce Sullivan.
    Daniel W. Newell, Minden, for Appellee, Eddie R. Harmon.

      Before WILLIAMS and GASKINS, JJ., and TRAYLOR, J. Pro Tem.
   JjWILLIAMS, Judge.

The plaintiff, Janice Sullivan, appeals a summary judgment rendered in favor of the defendant, Priscilla Wallace. The district court found that the plaintiff could not present evidence to show that defendant was liable for cutting or selling timber from land co-owned by plaintiff. For the following reasons, we affirm in part, reverse in part and remand.

FACTS

During their marriage, Janice and Bruce Sullivan purchased a 120-acre tract of wooded land (“Sullivan tract”) located in Claiborne Parish, Louisiana. After their divorce in 1990, the couple retained co-ownership in indivisión of this land and it was included in their contested proceeding to partition the community property. Bruce Sullivan later purchased a parcel of land adjacent to the Sullivan tract as his separate property, where he resided.

In February 1994, Mr. Sullivan contacted Eddie Harmon, an officer of Harmon Wood Company, Inc. (“Harmon Wood”), who agreed to purchase and remove previously fallen and cut logs from the Sullivan tract. Harmon did not question Mr. Sullivan about other possible owners of the land from which the logs would be removed, and did not inspect the public records to determine the ownership of the property. At various locations around the 120-acre tract, signs were posted with the printed words “Tree Farm” and the name “Bruce Sullivan.”

During the period from February 1994 to December 1994, Harmon Wood removed logs from the Sullivan tract. At the direction of Bruce Sullivan, Harmon Wood issued a series of checks in the total amount of C$29,901 to Priscilla Wallace as payment for timber removed from the 120-acre tract. Harmon Wood also issued checks to Bruce Sullivan in the amount of $33,364 for additional logs removed. However, Janice Sullivan did not receive any payments for the wood taken from the co-owned land.

In March 1995, Janice Sullivan visited the property and discovered that timber had been cut and removed without her knowledge. Mrs. Sullivan contacted Harmon, informed him that the land was the subject of litigation, demanded that Harmon Wood stop removing timber from the Sullivan land and requested information about the transaction. In response, Harmon Wood ceased the removal of logs from the 120-acre tract and identified those who were paid for the timber.

Subsequently, the plaintiff, Janice Sullivan, filed a petition for damages against the defendants, Harmon Wood, Eddie Harmon, Bruce Sullivan and Priscilla Wallace. The plaintiff alleged that Harmon Wood and Eddie Harmon, individually, were liable for trespass, conversion, negligence and statutory treble damages. The defendants, Harmon Wood and Eddie Harmon, filed a motion for partial summary judgment seeking dismissal of the trespass, negligence and treble damage claims against Harmon Wood and dismissal of all claims against Eddie Harmon individually.

Following a hearing, the district court granted partial summary judgment in favor of Harmon Wood, and dismissed all claims against Eddie Harmon. This court affirmed the judgment in favor of Harmon, but reversed the partial summary judgment rendered in favor of Harmon Wood and remanded the case for further proceedings. Sullivan v. Wallace, 33,387 (La.App.2d Cir.8/23/00), 766 So.2d 654.

The plaintiffs petition also alleged that Priscilla Wallace conspired with Bruce Sullivan to sell timber from the co-owned land with the intent to defraud plaintiff and falsely represented herself as an owner of the land to execute a timber sale. Plaintiff sought treble damages pursuant to LSA-R.S. 3:4278.1. Subsequently, Wallace filed a motion for summary judgment seeking dismissal of plaintiffs claims. After a hearing, the district court granted the motion for summary judgment, finding that plaintiff could not show that Wallace participated in acts giving rise to liability under the statute. The court rendered judgment dismissing plaintiffs claims against Wallace and certified the judgment as final for an immediate appeal. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the district court erred in granting summary judgment dismissing her claims under LSA-R.S. 3:4278.1. Plaintiff argues that summary judgment was improper because issues of material fact remain unresolved.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. If the movant will not bear the burden of proof at trial on the matter, the mover is required to point out to the court the absence of factual support for one or |4more elements essential to the adverse party’s claim or action. The non-moving party must then produce factual support sufficient to satisfy her evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

LSA-R.S. 3:4278.1 provides in pertinent part:

A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
:|: * * *
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.

The statute prohibiting the cutting of trees without consent and authorizing treble damages is punitive in nature and must be strictly construed. Haworth v. L’Hoste, 95-0714 (La.App. 4th Cir.11/30/95), 664 So.2d 1335, writ denied, 96-0408 (La.3/29/96), 670 So.2d 1235.

He who conspires with another person to commit an intentional or willful act is answerable with that person, for the damage caused by such act. LSA-C.C. art. 2324. To recover under a civil conspiracy theory of | ¡^liability, the plaintiff must prove that an agreement existed to commit an illegal or tortious act which resulted in plaintiffs injury. Butz v. Lynch, 97-2166 (La.App. 1st Cir.4/8/98), 710 So.2d 1171.

In the present case, Eddie Harmon testified by deposition that Harmon Wood agreed to purchase logs from Mr. Sullivan and issued checks payable to Priscilla Wallace in payment for the timber at his instruction. Harmon stated that he had not communicated with Wallace and that she was not mentioned as an owner of the land from which the logs were removed.

In his 1997 deposition, Bruce Sullivan testified that after an ice storm in February 1994, he contacted Harmon Wood regarding the sale of logs which were lying on the ground of the co-owned land. Sullivan stated that initially he intended to trade timber in exchange for Wallace’s truck and wanted the checks issued in her name to “avoid taxes.” However, Sullivan said he was told that he would not owe taxes on a sale of timber, so the trade was not made, but he did not tell Harmon Wood to stop issuing checks to Wallace during 1994. Sullivan testified that he alone had decided to cut and sell the timber, that he had picked up, endorsed and deposited the checks payable to Wallace and that he had received the entire amount from the timber sale proceeds. He reported the income on his 1994 tax return.

In her deposition, Wallace testified that she shared a joint checking account with Bruce Sullivan, but only made deposits and wrote checks from the account as he instructed. Wallace stated she was aware that Harmon Wood had issued checks in her name, but denied personally receiving any of those checks. Wallace testified that she “assumed” the checks in her name | (¡were deposited into the joint account, but that she had never looked at the account statements. Wallace acknowledged that an IRS form 1099, which showed that she was paid the timber sale proceeds of $29,901, was submitted with her 1994 tax return, but testified that this amount was later “backed out” of her income by her accountant and reported as Bruce Sullivan’s income on his tax return.

The deposition testimony demonstrates that Wallace did not participate in the sale agreement between Bruce Sullivan and Harmon Wood, which issued checks payable to Wallace in payment for timber as directed by Sullivan, the seller. Contrary to the plaintiffs contention, the evidence does not support an inference that Sullivan acted as Wallace’s agent in the sale and removal of timber from the co-owned land, since there was no showing that she exercised any control over his activities. In addition, the evidence does not prove that Wallace and Sullivan agreed to sell timber from plaintiffs land without her consent, in violation of LSA-R.S. 3:4278.1.

Based upon this record, the plaintiff has failed to present sufficient evidence to show that Wallace performed any acts of cutting, removing or selling trees located on the co-owned tract. Thus, we cannot say the district court erred in concluding that plaintiff could not satisfy her burden of establishing that Wallace acted in violation of Section 4278.1.

However, we note that the value of the timber removed from the co-owned land remains at issue. Thus, in light of the evidence that payment for such timber was made by checks payable to Wallace, she cannot be 17dismissed as a party in this action.

In her deposition, Wallace acknowledged that she was aware that checks were issued in her name and deposited in a bank account which she held jointly with Bruce Sullivan. Although Sullivan testified that he picked up and deposited the checks and spent all of the funds, Wallace stated that she had written checks drawn on the joint account, but could not recall the names of the payees. Additionally, we note that Sullivan’s deposition statements contradict his prior testimony in a child support proceeding that Wallace had received the entire amount of $29,901 in timber sale proceeds.

Based upon this record, a genuine issue of material fact exists with respect to whether Wallace or Sullivan was the party who actually received and must repay that portion of the timber sale proceeds belonging to the plaintiff. The resolution of this issue will require an evaluation of witness credibility and this determination is not appropriate for summary judgment. Consequently, we reverse the summary judgment on the issue of whether Wallace received the proceeds from the sale of timber removed from the co-owned land without the plaintiffs consent.

CONCLUSION

For the foregoing reasons, that part of the district court’s judgment dismissing plaintiffs claim against Priscilla Wallace for recovery of the value of timber removed from the co-owned land is reversed. The judgment is otherwise affirmed and this case is remanded to the district court for further proceedings. Costs of this appeal are assessed one-half to the [^appellant, Janice Sullivan, and one-half to the appellee, Priscilla Wallace.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.


author: JjDREW, J.

text:
    Melvin JACOBS, Plaintiff-Appellant, v. COCA-COLA BOTTLING COMPANY, and Patrick R. Aubrey, Defendants-Appellees.
    No. 37,775-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 20, 2003.

      Louis Granderson Scott, for Appellant.
    Donald James Armand, Jr., Shreveport, Christopher R. Johnson, for Appellees.
    Before GASKINS and DREW, JJ., and TRAYLOR, J. Pro Tem.
   JjDREW, J.

Melvin Jacobs appeals the judgment dismissing his action as prescribed. At issue is whether Jacobs’ timely presentation for filing of his petition to the Union Parish Clerk of Court was sufficient to interrupt prescription when the petition was accompanied by a check of $145 instead of the higher filing amount required by the Clerk of Court. For the reasons set forth below, we reverse the trial court’s judgment and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

Jacobs filed suit against Coca-Cola Bottling Company and Patrick R. Aubrey, alleging that on May 1, 2000, Jacobs was injured in a vehicular collision due to the fault of Aubrey, a Coca-Cola employee driving in the course and scope of his employment. The petition bore a filing date of July 9, 2001, and Coca-Cola filed an exception of prescription on August 1, 2002. Argument on the exception of prescription concerned whether prescription was interrupted when the Union Parish Clerk of Court, Third Judicial District, received Jacobs’ petition along with a check for $145, but then returned the petition without stamping it “filed” because the Fee Schedule for Union Parish set a $200 fee for original petitions, plus $40 for each additional defendant.

On September 3, 2002, the trial court held a hearing on the exception. The record does not contain a transcript of the hearing. The minutes of court reflect that documents were entered into evidence, counsel made oral arguments on the record, and trial court allowed counsel to subsequently submit written briefs. The trial court took the matter under advisement.

fiAt the prescription hearing, Jacobs introduced the following documents:

1. A copy of the Union Parish Civil Suits and Probate Fee Schedule which reflects a fee of $200 for a petition, plus $40 for each additional defendant;
At the bottom of this particular fee schedule are handwritten notations indicating that in the instant case the “filing fees” were $240 (apparently the $200 fee for the petition plus $40 for one additional defendant), from which was subtracted $145 for the check received with the petition, leaving a balance due of $95. An additional handwritten notation on the fee schedule indicated an additional $25 should be “made payable to Sheriff East Baton Rouge Parish,” and another $30 should be “made payable to Sheriff Ouachita Parish,” these additional charges reflecting the cost of service in East Baton Rouge Parish and in Ouachita Parish.
2. A copy of the $145 check made payable to the Union Parish Clerk of Court for the filing of the petition; and
3. A letter from Jacobs’ counsel’s office, dated April 27, 2001, to the Union Parish Clerk of Court, stating that the petition and a check in the amount of $145 for filing fees were enclosed.
A handwritten notation appears at the bottom of the letter, apparently by a court clerk, stating “notified for additional funds,” and the handwritten date “4-30-2001.”

In a post-hearing memorandum, Jacobs argued that:

• On April 27, 2001, Jacobs mailed to the Union Parish Clerk of Court the petition for the accident that occurred on May 1, 2000.
• The petition was received at least by April 30, 2001, as established by the notation by the clerk stating the additional funds were due.
• The clerk of court sent a notice to counsel on April 30, 2001, showing that additional fees were due.
• The notice was received in the office of Jacobs’ counsel a few days later, after May 1, 2001.
la* The Union Parish clerk refused to file the petition because Jacobs had sent only $145 when the fee set by the court was $200.
• The petition was returned to his counsel, who had to refile the petition which was not refiled until July 9, 2001.

Citing La. C.C.P. art. 253(A), Jacobs contended his petition was filed when it was presented to the Union Parish Clerk of Court on or before April 30, 2001, and the clerk was required to file it unless there was a specific statute allowing the clerk to refuse to do so.

La. C.C.P. art. 253(A) states:

All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of the court for such purpose. The clerk shall endorse thereon the fact and date of filing and shall retain possession thereof for inclusion in the record, or in the files of his office, as required by law. The endorsement of the fact and date of filing shall be made upon receipt of the pleadings or documents by the clerk and shall be made without regard to whether there are orders in connection therewith to be signed by the court.

Finally, Jacobs argued the application of the principle that prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished.

Because the petition had prescribed on its face, Coca-Cola stated Jacobs had the burden of proving that the matter had not prescribed; moreover, Jacobs had not carried his burden. Coca-Cola took the position that an appropriate filing fee must accompany a petition for it to be considered filed and that the timely receipt of Jacobs’ petition by the clerk’s | ¿office did not excuse the late filing of the petition. In support of its position, Coca-Cola cited Martin v. Kroger Co., 29915 (La.App.2d Cir.10/29/97), 702 So.2d 347, writ denied, 98-0033 (La.3/13/98), 712 So.2d 881, for its holding that failure to comply with the payment requirements for fax filings will result in a petition being deemed never filed and, thus, not interrupting prescription. Coca-Cola also cited Hill v. Hathaway, 32,016 (La.App.2d Cir.6/16/99), 741 So.2d 167, in which a deputy sheriffs choice to complete an in forma pauperis application in an untimely manner so as to delay the filing of an action against the sheriff was held not to interrupt prescription.

On January 16, 2003, the trial court issued oral reasons for granting the exception of prescription. Noting that the action was prescribed on the face of the petition, and that, as a consequence, Jacobs had the burden of showing the action was not prescribed, the court concluded that Jacobs had failed to meet his burden. In explaining this conclusion, the court cited:

• La. R.S. 13:842 and 843, which the court noted allow the clerk to demand and receive advance costs.
• Two attorney general opinions stating that a clerk of court can refuse to file pleadings that are not accompanied by the necessary advance deposits or security for costs.
Brown v. American National Property & Casualty Co., 98-2292 (La.App. 4th Cir.10/28/98), 720 So.2d 1278, discussed below.

| ^DISCUSSION

The issue for decision is whether or not the receipt by the clerk of court of the plaintiffs petition and accompanying check for $145 was sufficient to interrupt prescription even though the clerk did not stamp the petition “filed,” but returned the petition to the plaintiff because the $145 check was insufficient to cover the fees established on the Civil Suits and Probate Fee Schedule for Union Parish. For the reasons set forth below, we find that plaintiffs submission of the petition with the $145 check for fees was sufficient to interrupt prescription.

Statutory provisions pertinent to the issue herein are found in La. R.S. Title 13, Chapter 4, Subpart C, especially Sections 841, and 842-843.1. As explained in City of Monroe v. Lolley, 27,245-CA (La.App.2d Cir.2/23/95), 660 So.2d 94, 97, writ denied, 95-2359 (La.12/8/95), 664 So.2d 428:

The district courts’ civil fee bill, found at La. R.S. 13:841, is a cost list of over seventy specific functions performed by the courts. To allow the district court to function in a more efficient way and avoid the need to charge litigants separately for every cost incurred, the statutory scheme, found at La. R.S. 13:842-843.1, allows the clerk of court to charge litigants an advanced deposit for the estimated costs of trial. The amount of this advanced deposit is debited when the district court performs one of the functions in the civil fee bill. Should the amount of the litigants’ credit from the deposit ever drop below zero, the clerk can refuse to 'perform, any further function until the litigant pays further costs.

(Emphasis added.)

Of particular importance in this case are the provisions of La. R.S. 13:841(A) which state in pertinent part:

IfiThe clerks of the several district courts shall be entitled to demand and receive the following fees of office and no more in civil matters:
(1) For endorsing, registering, and filing petition, two dollars.

These provisions show that out of the $240 demanded by the clerk of court in the instant case, only $2 was required for the endorsing, registering, and filing of the plaintiffs petition, and that for this service, the clerk was entitled to demand and receive no more. Of course, Jacobs’ check for $145 was more than sufficient to cover the $2 charge allowed by law for endorsing, registering, and filing his petition. We conclude that the timely presentation of his petition, accompanied by a check for more than the statutorily-set fee for endorsing, registering, and filing his petition, was sufficient to interrupt prescription, even though the check was not in an amount sufficient to cover the advanced deposit for estimated costs.

Delictual actions are subject to a libera-tive prescription of one year. La. C.C. art. 3492. This prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. A civil action is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction. La. C.C.P. art. 421. Under the provisions of La. C.C.P. art. 253, all pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of court for that purpose, and the clerk shall endorse thereon the fact and date of filing and shall retain possession thereof for inclusion in the record or in the files of his office, as required by law.

|7Jacobs’ petition was presented to the clerk of court on the last day before prescription ran. By law, the clerk could charge Jacobs no more than $2 for endorsing, registering, and filing his petition, and Jacobs’ check was more than sufficient for that purpose. Accordingly, we conclude that under the provisions of La. C.C.P. art. 253, the clerk was required to endorse thereon the date and fact of filing and retain possession of the petition for inclusion in the record. In other words, the clerk was required to endorse, register, and file Jacobs’ petition.

We observe that the district court clerk is entitled to demand the pre-set advanced costs be paid forthwith, and can refuse to perform the functions for which fees were not received. La. R.S. 13:843 sets out a procedure by which clerks may pursue and obtain unpaid, accrued costs. However, it is unnecessary for us to explore herein the various issues that might arise with respect to payment of costs.

Although La. R.S. 13:842 and 843 allow the clerk to demand and receive advanced costs, demanding aifd receiving advanced costs do not negate the clerk’s obligation to endorse, register, and file a petition presented for that purpose along with the statutorily-required fee. The trial court also relied on the above-referenced attorney general opinions which opine that a clerk may refuse to file pleadings unless advanced costs are paid. We decline to follow those opinions.

Finally, we distinguish Brown, supra, on its facts. In Brown, a vehicular accident occurred on July 7, 1996, and on July 7, 1997, plaintiffs counsel faxed a petition to the Clerk of Court for Orleans Parish Civil | ^District Court. On that same date, the plaintiffs counsel mailed a copy of the petition to the clerk of court, along with a check in the amount of $202.50, and the clerk’s office sent the plaintiffs counsel a fax confirmation informing of the requirements of La. R.S. 13:850, including a notice that in order for the fax filing to have “full force and effect,” the original signed document had to be received by the clerk’s office within five days, along with the original filing fee, a $5 fax transmission fee, and an additional $2.50 per page for transmissions in excess of two pages. A handwritten itemization on the fax confirmation indicated a total fee due of $215.50. The original petition was stamped as filed on July 10, 1997, and the fax confirmation was stamped as received by plaintiffs counsel’s office on July 11, 1997. The defendant in Brown later filed an exception of prescription arguing that the filing was of no effect because the plaintiff failed to send the full amount due within five days after the fax filing. Although the trial court overruled the exception, the appellate court reversed, holding that because the plaintiff failed to timely remit the amount required by the facsimile filing statute, La. R.S. 13:850, the fax filing of the petition was of no effect and did not interrupt prescription.

The holding in Brown was based on the specific language of La. R.S. 13:850(C), which states that if the party filing a civil action by facsimile transmission fails to comply with the requirements of Subsection B of the statute, the facsimile filing shall have no force and effect. In turn, the provisions of Subsection B require the party, within five days exclusive of legal holidays after the clerk of court received the transmission, to forward 19to the clerk the original signed document, the applicable filing fee, if any, and a transmission fee of $5. In Brown, the check for $202.50, sent along with the original petition, was insufficient to cover the total fee demanded of $215.50. Accordingly, the court concluded that under La. R.S. 13:850(C), the facsimile filing on July 7,1997, was without force or effect and could not interrupt prescription. The court in Brown neither addressed the specific issue presented in this case, nor made reference to the provisions of La. R.S. 13:841(A).

We also distinguish our opinion in Hill v. Hathaway, supra, on its facts. As previously noted, in that case the plaintiff attempted to file a petition, but the petition “was not filed because the proper cost could not be paid.” The plaintiff picked up an in forma pauperis form from the clerk of court, but took it home and did not return to file the petition until after the prescriptive period had run. We noted that at the time the plaintiff presented his petition for filing, he was directed by the clerk of court to complete a form to seek the court’s permission to proceed informa pauperis, that the clerk’s request was appropriate and was not an outright denial of his attempt to file the petition on the last day of the prescriptive period, and that the plaintiff did not assert that he informed the clerk that the filing was necessary on that day in order to interrupt prescription. Furthermore, the plaintiff did not insist on leaving the petition with the |incourt, but merely left to complete the form, only to return a week later to make the actual filing. Under these circumstances, we held that the plaintiffs choice to complete the form in an untimely manner so as to delay the filing of his suit was no defense against the running of prescription. Thus, our opinion in Hill, supra, like the opinion in Brown, supra, simply does not address the narrow issue presented in this case and does not address the significance of the provisions of La. R.S. 13:841(A).

CONCLUSION

For the reasons set forth above, the judgment of the trial court is reversed, and the case is remanded to the district court for further proceedings. Costs are assessed to appellee.

REVERSED AND REMANDED.

      . Although Coca-Cola argued in the trial court, and has argued on appeal, that Jacobs' suit against Coca-Cola and Patrick Aubrey should have been brought as a cross claim in another case, and that assuming Jacobs’ petition was a cross claim, it still was prescribed, we observe that the record before us includes nothing with reference to any other suit, and we decline to address any arguments in that regard.

      . The opinions cited were Attorney General Opinion No. 77-1574 dated November 21, 1977, and Attorney General Opinion No.1956-58, page 63.

      . If it is the understandable and prudent practice of clerks of court to refuse to file petitions presented with some but not all of the advance fees and costs, the clerks of court could possibly consider seeking an amendment to 13:841 by the Louisiana Legislature adding language affording clerks that authority in language similar to that in La. R.S. 13:850(C) giving no effect to facsimile filings which are not followed with appropriate fees and hard-copy filings within five days.


text:
    Steven E. LANG, Plaintiff-Appellee, v. Tina Lisa Evans LANG, Defendant-Appellant.
    No. 37,779-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 23, 2003.
    Lauren Gay Coleman, Alexandria, for Appellant.
    Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Jonesboro, Teresa C. Carroll, for Appellee.
    Before STEWART, PEATROSS and TRAYLOR (Pro Tempore), JJ.
   | TRAYLOR, Judge Pro Tempore.

Tina Lisa Evans (Lang) (“Tina”) appeals the judgment of the Eighth Judicial District Court, Winn Parish, Louisiana in favor of her previous husband, Steven E. Lang (“Steven”). For the following reasons, we affirm.

Facts

Steven and Tina were married in January 2000 and established their matrimonial domicile in Winn Parish, Louisiana. The parties had no children, although Tina had a child from a previous marriage. Less than two years later, the couple separated and Steve filed a Petition for Divorce and an Amended Petition for Divorce against Tina, both in November 2001. In response, Tina filed her Answer and Recon-ventional Demand, wherein she requested interim periodic spousal support from Steven.

In early 2002, trial was held on incidental matters. Before the trial court at that time was Tina’s request for interim periodic spousal support, and the trial court ordered Steven to pay such support to Tina in the amount of $1,636 per month retroactive to December 12, 2001. The Judgment on Incidental Matters was signed on March 1, 2002, and, regarding the interim periodic spousal support awarded, specifically stated as follows:

... Steven E. Lang, to pay to plaintiff-in-rule, Tina Lisa Evans Lang, as interim periodic spousal support under Louisiana Civil Code Article 111 the sum of $1,636.00 per month, retroactively commencing on December 12, 2001, and continuing on the 12th day of each succeeding month until rendition of a judgment of divorce in this case, reserving to the parties and the Court the right to either continue said support payments for up to 180 days after the granting of said divorce, or to modify or terminate said support payments. (Emphasis added).

D.On July 18, 2002, the parties were divorced. Subsequently, Tina filed a motion to make the support judgment executory, for contempt, and for attorney’s fees. She also sought to extend interim spousal support, alleging that Steven had terminated such support in May 2002. After a hearing on that matter in October 2002, Judgment was rendered with the trial court finding Steven in contempt for not paying interim spousal support. The trial court also terminated the award of interim spousal support as of the date of divorce. Tina appealed from that judgment. In response, Steven filed a peremptory exception of res judicata which had previously been deferred to the merits of this appeal.

Discussion

On appeal Tina states that the trial court erred in terminating her interim periodic spousal support as of the date of her divorce from Steven. She argues that an award of interim periodic spousal support automatically continues for one hundred eighty days beyond the date of divorce. Under the particular facts of this case, we disagree.

The trial court is vested with much discretion in determining awards of spousal support. Such determinations will not be disturbed absent a clear abuse of discretion. Jones v. Jones, 34,822 (La.App.2d Cir.06/20/01), 793 So.2d 243; Thomey v. Thomey, 33,000 (La.App.2d Cir.04/07/00), 756 So.2d 698; McDermott v. McDermott, 32,014 (La.App.2d Cir.06/16/99), 741 So.2d 186.

| ¡¡Louisiana C.C. art. Ill states as follows:

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay, ... (Emphasis added).

Louisiana C.C. art. 113 states as follows:

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown. (Emphasis added).

In this case, the trial court, exercising the discretion allowed it under La. C.C. arts. Ill and 113, initially awarded Tina interim periodic spousal support in its Judgment on Incidental Matters “until rendition of a judgment of divorce in this case,” expressly reserving the right to “continue,” “modify,” or “terminate” the award. The Judgment of Divorce rendered July 18, 2002 is silent regarding spousal support, interim or final.

On July 19, 2002, Tina’s Motion to Make Spousal Support Judgment Executory, for Contempt and Attorney Fees and to Extend Spousal Support Award was filed, resulting in an October 2, 2002 hearing on Tina’s rule. At that hearing, the trial court specifically considered evidence regarding Tina’s ability to support herself. Based on its review of the evidence, and pursuant to its express reservation in the earlier Judgment on Incidental |4Matters, the trial court terminated Tina’s interim spousal support. The record contains the trial court’s oral reasons rendered at the conclusion of the hearing wherein it determined that “all support payments, interim periodic support is terminated as of the date of judgment of divorce, which was July 19, 2002.”

Considering that La. C.C. arts. Ill and 113 give a trial court discretion in making an award of interim periodic spousal support, it was not error for the trial court to reserve its right to later revisit the issue of whether to “continue,” “modify,” or “terminate” Tina’s interim support. Nor was it error, considering the evidence before the trial court, to then exercise its discretion again (as reserved in the Judgment on Incidental Matters) and terminate Tina’s interim support retroactive to the date of the parties’ divorce.

Tina argues that the trial court, once it exercised its discretion and awarded Tina interim support, was constrained to extend the award until “the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever [occurred] first.” La. C.C. art. 113. One case she looks to is our previous opinion in Jones, supra, which can be distinguished from the facts at hand, and, therefore, is inapplicable. In Jones, the trial court awarded Mrs. Jones interim periodic spousal support in its initial Judgment on Rules. No further mention was made regarding the award. Later, the Judgment of j ¡^Divorce was rendered, specifically maintaining the Judgment on Rules. In Mr. Jones’ attempt to terminate Mrs. Jones’ award of interim support as of the date of divorce, he argued that he never intended to maintain such support after the date of divorce. Although we concluded in Jones that interim support award to Mrs. Jones was to stay in place for the initial 180 days subsequent to the divorce judgment, we did so based only on the “clear wording of the Judgment of Divorce.”

In the case sub judice, based on the “clear wording” of the trial court’s Judgment on Incidental Matters initially awarding Tina interim periodic spousal support (i.e. reserving the right to “continue,” “modify,” or “terminate” her interim support), the trial court did not err in terminating her interim support retroactive to the date of divorce. Such a determination was within the discretion of the trial court as allowed pursuant to La. C.C. arts. Ill and 113.

Additionally, our findings herein preter-mit a discussion of Steven’s exception of res judicata.

Conclusion

For the foregoing reasons, the judgment in favor of Steven E. Lang is hereby affirmed, with the costs of this appeal assessed to Tina Evans (Lang).

AFFIRMED.

      . For reasons unknown, an identical judgment was also signed on May 29, 2002.

      . The appeal record has been supplemented with the Judgment of Divorce rendered in Steven E. Lang versus Tina Lisa Evans Lang, Proceedings No. 37219-02, Eighth Judicial District Court, Parish of Winn, State of Louisiana.

      . Notably, the Judgment on Incidental Matters, wherein the trial court reserved its right to revisit the issue of interim spousal support, was not appealed from, nor has Tina filed a petition to annul said judgment based on an error in the legal substance of the judgment.


author: | TRAYLOR, Judge Pro Tempore. hBROWN, C.J.,

text:
    Kenda FITE, Plaintiff-Appellee, v. LOUISIANA TITLE COMPANY, Defendant-Appellant.
    Nos. 36,393-WCA, 36,394-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2003.

      Law Offices of Ronald F. Lattier by Ronald F. Lattier, Shreveport, Corey F. Pierce, for Appellant.
    Kenda Fite, In Proper Person, Appellee.
    Before BROWN, WILLIAMS, PEATROSS, MOORE and TRAYLOR (Pro Tempore), JJ.
   | TRAYLOR, Judge Pro Tempore.

This case is on remand from the Louisiana Supreme Court from our prior opinion, Fite v. Louisiana Title Company, 36,393 (La.App.2d Cir.09/18/02), 828 So.2d 165 (“Fite /”), wherein this Court reversed a portion of the judgment of the Workers’ Compensation Judge (“WCJ”) which had been in favor of Kenda Fite (“Fite”). For the following reasons, we find that the portion of the judgment in favor of Fite was manifestly erroneous, and we herein reverse.

As explained previously in Fite I, Fite was employed by Louisiana Title Company (“Louisiana Title”) as an abstractor for approximately three and one-half years. She claims that during the course and scope of her employment, she sustained occupational diseases to her upper extremities, specifically, bilateral carpal tunnel syndrome, lateral epicondylitis, and ulnar nerve neuropathy. Louisiana Title investigated Fite’s alleged injuries and paid her workers’ compensation benefits from October 1,1997 through June 1, 2000.

After a trial of the matter, and in oral reasons for judgment, the WCJ determined that both the bilateral carpal tunnel syndrome and the lateral epicondylitis condition were employment-related, as were the resulting surgeries for each. The WCJ concluded, however, that Fite’s ulnar nerve neuropathy was not employment-related, and thus, the associated medical treatment of that condition was also not deemed to be employment-related. An appeal by Louisiana Title ensued, wherein this Court reversed the judgment of the WCJ, stating that “the evidence which was relied upon by the hWCJ simply was not sufficient to support the claims by Fite and certainly did not rise to the necessary standard of proof required to find an occupational disease existed.” The Louisiana Supreme Court remanded the case with directions to this Court “to review the record under the manifest error standard of appellate review.” Fite v. Louisiana Title Co., 2002-2607 (La.06/27/03), 852 So.2d 983 (“Fite II”).

Discussion

Pursuant to La. R.S. 23:1031(B): “An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.... ” (Emphasis added). As we noted previously in Fite I:

A claimant asserting an occupational disease must prove by a preponderance of evidence that there is a disability which is related to an employment-related disease, that the disease was contracted during the course of employment and that the disease is a result of the work performed. Hymes v. Monroe Mack Sales, 28,768 (La.App.2d Cir.10/30/96), 682 So.2d 871; Price v. City of New Orleans, 95-1851 (La.App. 4th Cir.03/27/96), 672 So.2d 1045, writ denied, 96-1016 (La.10/25/96), 681 So.2d 360. The causal link between an employee’s occupational disease and work-related duties must be established by a reasonable probability. Hymes, supra; Shields v. GNB Technologies, Inc., 33,-911 (La.App.2d Cir.10/04/00), 768 So.2d 774; Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused the disease. Hymes, supra; Bryant v. Magnolia Garment Co., 307 So.2d 395 (La.App. 2d Cir.1975). Expert testimony is required to support a finding of an occupational disease. Hymes, supra; Price, supra; see also, Picard v. Dynamic Offshore Contractors, 618 So.2d 1183 (La.App. 3d Cir.1993). (Emphasis ours).

Id. at 166-167.

Is As stated, Fite claimed that during the course and scope of her employment, she sustained occupational diseases to her upper extremities, specifically, bilateral carpal tunnel syndrome, lateral epicondylitis, and ulnar nerve neuropathy. For those conditions, she was treated by two doctors, Dr. John Knight (“Dr.Knight”) and Dr. Marion Milstead (“Dr.Milstead”). Louisiana Title selected Dr. Eric George (“Dr. George”) for a second opinion of Dr. Knight’s diagnosis.

Fite first saw Dr. Knight in September 1997, and he subsequently performed four surgeries on her. Most significant of Dr. Knight’s records are two reports, both dated September 11, 1997. In his handwritten report of that date, Dr. Knight noted his opinion that Fite had “right arm pain several weeks from pulling books all day.” His typed report of that same date lists under her history (which presumably would have been given to him by Fite herself) that “[h]er job consists of pulling large books to research titles and she also writes significant amounts.” Later in that same report, Dr. Knight made his “impression” that Fite’s symptoms “are most likely attributable to [her] occupation.”

Dr. Milstead, who became Fite’s treating physician subsequent to Dr. Knight, never rendered an opinion as to the cause of her ailments. |4However, following Fite’s initial appearance at trial (the trial was interrupted and resumed later), Dr. Milstead rendered a medical opinion on February 22, 2001 “that actually the [lateral epicondylitis] and the carpal tunnel had come on since the patient has really been off work and I do not feel that those two symptoms are related to the on-the-job injury....”

Finally, at the trial of the matter, Dr. George also opined that her conditions were not employment-related.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Crotwell v. Holloway Sportswear, 32-038 (La.App.2d Cir.06/16/99), 740 So.2d 748, 751, citing Seal, supra; Gilliam v. Manhattan/Whitaker Const. Co., 30,566 (La.App.2d Cir.05/13/98), 714 So.2d 101, writ not considered, 98-1845 (La.09/04/98), 723 So.2d 429. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Seal, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551; Crotwell, supra.

Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the fact-finder’s findings are reasonable in light of the record reviewed in its entirety, a court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Seal, supra; Crotwell, supra. Conversely, when a | ¿review of the evidence indicates that the fact-finder’s findings are unreasonable, an appeal court may reverse such determination.

After reviewing all of the evidence in connection with Fite’s claim and applying the manifest error standard of review, we again conclude that Fite failed to meet her burden of proving that her conditions were caused by her employment. It was incumbent upon Fite to prove by a reasonable probability a causal link between her occupational diseases and her work-related duties. Here, the medical evidence presented by Fite was insufficient to prove that her conditions were “due to causes and conditions characteristic of and peculiar to [her] particular trade, occupation, process, or employment.”

Specifically, the WCJ’s reliance on Dr. Knight’s medical opinion, particularly the reports of September 11, 1997, was unreasonable, making her final conclusion manifestly erroneous. In the case sub judice, our review of the medical reports of Dr. Knight does not indicate that he considered any detailed information regarding the particular aspects of Fite’s job that would have caused her disease. In fact, it appears that the | ^impression contained in Dr. Knight’s September 11th report, which the WCJ referred to specifically in her oral reasons for judgment, was based only on the loose job description provided her by Fite (i.e., “[h]er job consists of pulling large books to research titles and she also writes significant amounts”). There is no evidence that Dr. Knight employed any sort of independent job analysis to confirm the exact duties of a title examiner or that he had any other independent information of what Fite’s job entailed; thus, we conclude that Dr. Knight’s medical reports lacked sufficient and reasonable foundation to show that Fite’s ailments were “due to causes and conditions characteristic of and peculiar to” her particular job as a title examiner. Clearly, his opinion did not sufficiently establish a causal link between Fite’s job and her disease, and it was unreasonable for the WCJ to give said reports greater weight in reaching a decision, making the final determination manifestly erroneous. See Myles v. Printpack, Inc., 35,355 (La.App.2d Cir.01/23/02), 806 So.2d 172, where the claimant’s treating physician was unable to give an opinion regarding causation because he lacked precise knowledge of what the claimant’s job entailed.

Granted, Fite testified that her job entailed lifting heavy record books in parish courthouses. In fact, Fite testified that she “probably pulled 100 to 200 books on one title.” She also stated that she had to write continuously, “all day long.” Finally, she stated that she carried her briefcase everyday. However, her testimony, along with the medical reports of one of her treating physicians, Dr. Knight, is not sufficient proof in light of the medical opinions of Dr. Milstead, another treating physician, and Dr. George. RNotably, Fite was required to provide an expert medical opinion to support her claims regarding her condition. Clearly, Fite failed to prove by a preponderance of the evidence that she suffered a disability related to an employment-related disease, that the disease was contracted during the course of employment, and that the disease is a result of the work performed. The findings of the WCJ deciding otherwise were unreasonable and clearly in error.

Conolusion

For the foregoing reasons, the judgment of the WCJ in favor of Kenda Fite is hereby reversed, with costs of this appeal assessed to her.

REVERSED.

BROWN, C.J., dissents with written reasons.

WILLIAMS, J., dissents for the reasons assigned by Brown, C.J.

hBROWN, C.J.,

dissenting,

Considering plaintiffs testimony and Dr. Knight’s opinion as expressed in his reports, the WCJ found a causal link between the job and the diseases. Although I also agree that Dr. Milstead’s testimony was credible, I cannot say that the WCJ was unreasonable or clearly wrong. Thus, I respectfully dissent.

      . Fite did not appeal the finding that her ulnar nerve neuropathy was not employment-related.

      . As noted by the supreme court in Fite II, in our previous opinion, Dr. Knight’s second typed report dated September 11, 1997 was not considered, which omission, the supreme court stated, was in error. We have considered the report in our current review of the case. However, we note that our previous determination not to consider the report in Fite I was due to a procedural irregularity not within the realm of La. Admin. Code tit. 40, § 6209 (March 2002). Specifically, the transcript of the trial proceedings does not indicate that the particular exhibit, "J-3,” was ever introduced and admitted into evidence-a procedural error seemingly committed by the attorneys (on the other hand, the record does reflect where other joint exhibits were introduced and admitted into evidence). The particular administrative rule referred to by the supreme court addresses a scenario regarding medical reports which seems distinct to the scenario in this case, i.e., a piece of evidence that, although seemingly agreed to by the parties, was inadvertently omitted at trial. Nonetheless, we will consider all of the medical reports in our current review.

      . See Crotwell, supra, where this Court previously stated that:
      [T]he plaintiff has failed to show that she had a disability related to an employment disease, that she contracted the disease during the course of her employment or that the disease was the result of work preformed. Said another way, the plaintiff simply failed to prove that she had a com-pensable occupational disease. The opinion of the WCJ that the plaintiff had an occupational disease is not reasonable and therefore is manifestly erroneous and clearly wrong.

      . Although, we recognize the well established principle that greater weight should be given to the opinion of the treating physician, see Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982) and Scott v. Rutherford House, 35,645 (La.App.2d Cir.01/23/02), 806 So.2d 974, writ denied, 2002-0833 (La.05/24/02), 816 So.2d 852, a court is not bound to blindly give credence to the opinion of a claimant's treating physicians. Scott, supra; Davison v. Horseshoe Casino, Inc., 31,-166 (La.App.2d Cir.10/28/98), 720 So.2d 785, writ denied, 1998-2950 (La.01/29/99), 736 So.2d 833.