author: I .PETERS, J.

text:
    Teilla L. NOEL v. HOME HEALTH CARE 2000, INC.
    No. 03-1280.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Robert T. Jacques, Jr., Attorney at Law, Lake Charles, LA, For PlaintiffAppellee, Teilla Noel.
    H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, For Defendant/Appellant, Home Health Care 2000, Inc.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   I .PETERS, J.

In this workers’ compensation case, Home Health Care 2000, Inc. (Home Health) appeals a judgment in favor of its former employee, Teilla Noel, ordering reinstatement of Ms. Noel’s indemnity and medical benefits, awarding reimbursement for mileage expenses, awarding $9,000.00 in attorney fees, and holding that Ms. Noel did not violate the provisions of La.R.S. 23:1208. For the following reasons, we affirm in part and reverse in part.

DISCUSSION OF THE RECORD

Jonald J. Walker is the president of Home Health, and his wife, Lisa Walker, is the corporation’s chief executive officer. Apparently, they are the sole shareholders in the corporation. In February of 1998, Mrs. Walker hired Ms. Noel as a clerical employee. Ms. Noel eventually attained the position of office staff coordinator.

On September 30, 1998, in the course and scope of her employment, Ms. Noel fell off of a ladder while attempting to move files. As a result of the accident, Ms. Noel sustained various injuries and saw a host of physicians and psychologists for evaluation and/or treatment. Ms. Noel’s diagnoses included a concussion, post-concussion syndrome with brain injury, right knee injury requiring arthroscopic surgery, sacroiliac joint dysfunction, depression, and pain disorder. Following her work accident, Ms. Noel began receiving indemnity and medical benefits and mileage expense reimbursements for travel in connection with her medical evaluations and treatment. . Ms. Noel did not return to any employment after her work accident.

At some point, Home Health began to question the accuracy of Ms. Noel’s mileage submissions, and, in August of 2001, or almost three years after her work 12accident, Home Health discontinued reimbursement of the mileage expenses. Additionally, in August of 2001, Ms. Noel underwent a functional capacity evaluation (FCE). Ms..Noel’s effort in the FCE was labeled as “questionable” and “unreliable” to a degree. While the evaluator was of the opinion that Ms. .Noel could not accurately be placed in an appropriate work category “[d]ue to [her] excessive number of inconsistent test results,” the evaluator assumed through clinical observation and test results that Ms. Noel qualified for light-duty work. Home Health offered Ms. Noel her former job with accommodations and at the same rate of pay. .Ms. Noel refused the job offer. Based mainly on its determination that Ms. Noel misrepresented her mileage and partially on the invalid FCE and the job tender, Home Health discontinued indemnity and medical benefits in September of 2001,

However, apparently just prior to Home Health’s discontinuance of benefits, Ms. Noel ended a sexual affair she had been having with Mr. Walker. In fact, according to Ms. Noel, Mr. Walker had indicated to her that the benefits would be stopped because she refused to accompany him on a trip to Dallas, Texas. Mr. Walker denied that he had any control over Ms. Noel’s receipt of benefits and stated that he did not tell her he had such control.

Regardless of any actual connection between the discontinuance of benefits and the ending of the affair, the affair and its aftermath resulted in complications not encountered in the typical workers’ compensation case. Specifically, the sexual aspects of the affair began after the work accident, but Mr. Walker and Ms. Noel had engaged in i‘[c]ommunication” before the work accident. It appears that in the Fall of 2001, Ms. Noel filed a sexual harassment lawsuit against Mr. Walker. Additionally, in December of 2001, she filed a criminal complaint, asserting that Mr. | ¡¡Walker was making harassing telephone calls to her. According to Ms. Noel, after the affair ended, Mr. Walker called her repeatedly, appeared at her house, and followed her. However, Ms. Noel testified that the harassment was not limited to Mr. Walker as Mrs. Walker followed her as well. She presented as evidence of the Walkers’ activities her journal entries in which she recorded various episodes of the harassment, the Calcasieu Parish Sheriffs Department complaint and investigation records, and BellSouth telephone records. Mr. Walker, on the advice of separate counsel who was present during the workers’ compensation proceedings, refused to answer questions concerning the alleged affair and harassment.

In part due to these complications and in part due to her continuing physical problems, Ms. Noel did not feel that she could accept the job offer by Home Health following the FCE. Additionally, while Ms. Noel admitted that the mileage she submitted was not in compliance with the shortest routes available to her, her reasons for taking the longer routes included attempts to avoid being followed by Mr. Walker and the need to pick someone up to go with her to certain appointments because she was afraid to be alone and because of the nature of the procedures she was to undergo.

Following the termination of benefits, Ms. Noel filed the instant claim for reinstatement of benefits, penalties, and attorney fees. Home Health countered with the assertion that Ms. Noel violated La. R.S. 23:1208 by overstating her mileage in her reimbursement requests and by misrepresenting her physical capabilities in the FCE.

After a trial on the merits, the workers’ compensation judge (WCJ) held that Ms. Noel did not commit fraud for purposes of La.R.S. 23:1208 forfeiture, ordered reinstatement of indemnity and medical benefits from the date of termination of those | ¿benefits, awarded a penalty in the amount of $2,000.00, awarded attorney fees in the amount of $9,000.00, and ordered that unpaid mileage expenses be resubmitted. Home Health then filed a motion for new trial, which the WCJ granted in part to the extent of deleting the penalty award and setting the mileage for various healthcare providers as well as a pharmacy. Otherwise, the WCJ left its original judgment intact.

Home Health has appealed, asserting the following assignments of error:

1. The trial court erred in awarding Teilla Noel disability benefits subsequent to September 21, 2001.
2. The trial court erred in finding Teil-la Noel did not violate LSA R.S. 23:1208, forfeiting any future right to worker’s compensation benefits.
3. The trial court erred in awarding attorney’s fees.

Additionally, Ms. Noel has answered the appeal, seeking additional attorney fees for work done on appeal.

OPINION

Indemnity Benefits

Initially, Home Health contends that the WCJ erred in awarding Ms. Noel indemnity benefits after September 21, 2001. Specifically, Home Health’s vocational rehabilitation consultant determined that Ms. Noel’s former job was available to her and that she could physically perform the job. Home Health thus offered Ms. Noel her former job, with accommodations, at her same rate of pay and presented evidence that it had jobs available at the same rate of pay at other Home Health office locations where Mr. Walker would not be present. Nevertheless, Ms. Noel did not return to work with Home Health, citing personal and physical reasons. The WCJ rejected these positions as being insufficient to terminate indemnity benefits, and Home Health challenges this rejection.

Louisiana Revised Statutes 23:1226(B)(1) provides that the goal of | ¡¡rehabilitation services is to return the disabled employee to work as soon as possible after an injury occurs, with a minimum of retraining. The first appropriate option is a return to the same position. Id. Additionally, in order for an employer to establish the employee’s earning capacity, the employer must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or available to the employee in the employee’s or employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i); Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. An employer may discharge its burden of proving job availability by establishing: (1) the existence of a suitable job within the employee’s physical capabilities and within the employee’s or employer’s community or reasonable geographic region, (2) the amount of wages that the employee can be expected to earn in that job, and (3) an actual position available for that particular job at the time that the employee received notification of the job’s existence. Banks, 696 So.2d 551. A “suitable job” has been described as “a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education.” Id. at 557.

In this assignment of error, we address only whether the Home Health jobs offered or open were truly “available” under the facts and circumstances of this case, not whether Ms. Noel was physically capable of performing the jobs.

Home Health asserts the following in its brief: '

The main objection to the tender of employment was due to the employee’s illicit relationship with the owner of Home Health '2000, Jonald Walker. ■This was a sexual relationship which started after Ms. Noel began receiving worker’s compensation benefits. It included secret rendezvous in apartments and motels, both locally and afar. This relationship continued for over two years. Neither Jonald Walker nor | fiTeilla Noel is blameless in this relationship. Jonald Walker was married. His wife worked at Home Health. Teilla Noel knew Jonald Walker was married. In fact, she knew his wife. Nonetheless, she knowingly entered into this relationship.
. It is unfathomable that an employee can benefit from their own indiscretions. In the instant case Ms. Noel entered into a dangerous relationship, that with a married man. The examples of such relationships ending in good standing are few and far between. Ms. Noel got what she deserved, a distasteful ending. In the name of justice she cannot benefit by her actions.
-Furthermore, it is inconceivable that the Walkers would continue harassment of Ms. Noel given the fact that there are criminal charges pending against Mr. Walker. There are no less than fourteen separate offices in which Ms. Noel could work. Jonald and Lisa Walker work out of one of those offices. Allegations of continued harassment are simply baseless. Had Ms. Noel wanted to establish such harassment she should have returned to work. Only in that fashion could anybody state, with any certainty, whether she would have been penalized by the Walkers as a result of her adulterous relationship with Jonald.

This is a case of first impression for us and, as set forth above, is complicated by circumstances not usually present in a workers’ compensation case. Ms. Noel’s former job involved working in the same office location as Mr. Walker, with whom she had been involved sexually. Were the affair the only complication in Ms. Noel’s return to work, we might be inclined to agree that Ms. Noel should not be allowed to “benefit from [her] own indiscretions” to the extent of considering her former job as not being “available” because of this complication.

However, the evidence reveals more than the mere termination of the affair. After Ms. Noel ended the affair, Mr. Walker stalked and harassed her. Additionally, Mrs. Walker followed or stalked Ms. Noel during these events. The Walkers are both the officers and owners of the employing corporation. Under these circumstances in which the former employers committed acts against them former employee that resulted in or necessitated the filing of a civil suit and criminal charges, we cannot say that the WCJ erred in finding that Ms. Noel’s former job was not truly “available” to [7her as a suitable or appropriate job. We hold that such factors should be considered in determining the “suitability” of and thus the “availability” of a job. Certainly the job was theoretically “available” to her or available “on paper” according to the trial testimony, but it was not suitable for her and thus not practically “available” due to the actions of the Walkers. We find specious Home Health’s argument to the effect that “it is inconceivable that the Walkers would continue harassment of Ms. Noel given the fact that there are criminal charges pending against Mr. Walker.” Rather, in keeping with the beneficent and humanitarian goals of the Workers’ Compensation Act, we find that Ms. Noel should not be required to either suffer the loss of her workers’ compensation benefits or return to a work environment where those in authority over her have already engaged in a course of hostile and perhaps criminal conduct against her and against whom she has ongoing litigation as a result. Further, were she to return to work, Ms. Noel would be put in a position of depending on the continued availability of that job from the Walkers themselves, where, according to Ms. Noel, Mr. Walker had previously threatened her with the loss of her workers’ compensation benefits for failing to comply with his demands. Human nature militates against the fitness or feasibility of such a work situation. Simply put, the offer of her former job under these circumstances is sham rehabilitation. We do not comment in any way on Ms. Noel’s physical ability to perform the job; rather, our holding is that the job is not available to Ms. Noel, regardless of her abilities, because of the actions of her former employers.

Nevertheless, Home Health presented evidence as to the availability of positions in its other office locations in the area, where Mr. Walker would not be present. Still, Mrs. Walker admitted that she and her husband supervise the other |soffices and that she travels to those offices about once a month. Moreover, regardless of the physical presence or absence of the Walkers at other Home Health job locations, the Walkers are still the owners of Home Health. For the reasons given above, these jobs are also not practically available to Ms. Noel.

Forfeiture of Benefits

Home Health contends that the WCJ erred in finding that Ms. Noel did not violate La.R.S. 23:1208 and thus forfeit her right to workers’ compensation benefits when she misrepresented her mileage and when she misrepresented her physical capabilities at the FCE.

Louisiana Revised Statutes 23:1208(A) provides: “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter ... to willfully make a false statement or representation.” Further, La.R.S. 23:1208(E) provides: “Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.” “The only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12.

Concerning mileage reimbursement, La. R.S. 23:1203(D) provides in pertinent part that “the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section.... ” |9(Emphasis added.) Home Health asserts that Ms. Noel continuously, wilfully, and for the purposes of obtaining benefits overstated her mileage for a period of almost three years, which led to her receiving around $1,000.00 in benefits to which was not legally entitled. Home Health hired a private investigator to check the mileage for the most direct routes for certain locations, and the private investigator’s mileage was significantly different than that reported by Ms. Noel. Additionally, Home Health’s third-party administrator checked Ms. Noel’s reported mileage against mileage available over the internet through MapQuest, and again the mileage differed significantly. Home Health cites Johnson v. Basic Industries, Inc., 97-1136 (La.App. 3 Cir. 4/15/98), 711 So.2d 843, writ denied, 98-1358 (La.6/26/98), 719 So.2d 1292, and St. Bernard Parish Police Jury v. Duplessis, 02-632 (La.12/4/02), 831 So.2d 955, in support of its argument.

At trial, Ms. Noel admitted that she did not take the shortest routes available to her, but she denied doing anything willful to change the mileage that she submitted. Because her vehicle did not have a “trip meter,” she recorded the mileage when she left home and subtracted that from the mileage registered when she returned home. As we appreciate her testimony, Ms. Noel included in her mileage the distance to pick up her friend or her daughter to attend various appointments with her because: “I was scared to be by myself during the day and also, a lot of times, I got injections; and Dr. Lopez suggested that I bring somebody with me to drive home.” As set forth above, it appears that Mr. Walker followed or stalked Ms. Noel, and she testified that she chose a certain route because Mr. Walker was not aware of that route. Additionally, it appears that Ms. Noel included in her mileage the distance traveled to her mother’s house where she dropped her children off during certain doctor |]nappointments. Ms. Noel hired her own private investigator, who checked the mileage for Ms. Noel’s trips within Calcasieu Parish in accordance with the routes given by Ms. Noel. According to Ms. Noel’s private investigator, the mileage Ms. Noel submitted was actually less, except in one instance, than what he found.

Ms. Noel testified that no one ever informed her that she had to use the shortest routes. Indeed, La.R.S. 23:1203(D) requires only that the mileage be reasonable and necessary. The WCJ adjusted the mileage owed by Home Health to an amount less than that claimed by Ms. Noel, but he did not find that Ms. Noel had wilfully made false representations for the purpose of obtaining benefits' in regard to her mileage submissions. The WCJ gave the following reasons:

I’ve sat less than two feet from each person testifying, listened to everything they said, gauged their demeanor, weighed what they said in context of what everyone else said, and made a decision based on credibility, because this case, while it involves a unique combination of litigation and libido, basically comes down to who is the most believable. I don’t think anybody who has listened to and sat where I’ve sat and looked at the witnesses as carefully as I looked at them could possibly reach any other conclusion than I have reached. They could have reached it quicker, perhaps, but it wouldn’t be any different. The over-arching and under-penning [sic] question here is: Did Mrs. Noel commit fraud, and what would be the consequences of her either doing it or not doing it? Did she deceive her employer?
Well, we have a lot of geographical material. We know where all the streets are and ponds and lakes and bridges and all. We know all that, but that really' — and we know the shortest distance from point “A” to point “B”, but I could have figured that out from home. I know Moss Bluff and all the doctors’ offices, and I can tell you the quickest way to get there, but that really doesn’t go to the heart of the problem. She admits she didn’t take the shortest distance, and she says the reason she didn’t take the shortest distance — well, there are two. First, she needed to take medication at the doctor’s office on occasion, and she needed somebody to go with her to drive her back, and the people that she happens to know just didn’t live on the direct A-to-B, geometrically straight route. Reasonable.
Secondly, she says she’s having problems, or was having problems, and still is, with her employer. Well, there’s a lot of dispute about that. When did it start, when did it end, what happened, and all of that, and Mr. Walker took the stand briefly. Well, he didn’t stay on the In stand briefly, but he answered very briefly, and I want the record to reflect that every word out of his mouth was heard by his counsel who is representing him in another related matter, and I took great pains to make sure that his counsel had direct eye contact with Mr. Walker, and he apparently used it. He refused to answer each and every question that is important as to the issue of whether or not Ms. Noel found it necessary to use a different approach. Now, his refusing to answer is certainly his prerogative, and I respect that, and I draw no inference from the fact that he said nothing, nothing; however, I did, can, and am drawing inferences from the testimony of the CEO, his wife, whose attorney in this matter was also in court, with direct eye contact with her. The question was: Did you know that Ms. Noel and her husband was [sic] having an affair? And the answer was, “I don’t know anything about that.” So I sit here in slack-jawed disbelief, as Mrs. Walker says, who has been served, presumably with papers by a U.S. Marshal, I guess that’s who served them in federal court, citing the affair, and the relationship, and the alleged harassment, but he [sic] just doesn’t know anything about this, and that was the high point of her testimony. The rest of it was— not clear and confusing. Asked did he think Ms. Noel was an honest person. He said no. Would you hire her back? Absolutely.
Now, Mrs. Walker remembers nothing. Her — her most frequent response was: I just don’t recall. Mr. Walker just is not going to testify. We then have to move to Ms. Noel, who presented pounds of documents, clear, detailed information that outlined her allegation. Police reports, police complaints, district attorney reports, page after page, and they’re all in evidence, page after page of telephone calls made by, presumably, Mr. Walker to her. Mr. Walker can’t comment. Mrs. Walker says she doesn’t know anything about it, so we pretty much are left with what Ms. Noel says.

The WCJ concluded that Mrs. Noel did not commit fraud: “What she did had a lot of labels to it, but it does not rise to the level of fraud.”

Credibility calls are for the WCJ. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). The record supports that while Ms. Noel recorded mileage that was arguably not reasonable and necessary for purposes of La.R.S. 23:1203(D), which issue we do not here decide, she did not do so wilfully for the purpose of obtaining benefits. We do not find that the WCJ’s credibility calls and other factual determinations in this regard were clearly wrong. Further, the cases cited by Home Health are inappo-site. In Johnson, 711 So.2d 843, this court found that the employee |1gwas not credible, and the specific and complicating facts that are present in the instant case were not present in Johnson. Also, in St. Bernard, 831 So.2d 955, the supreme court expressly stated that the issue of whether the 'employee wilfully gave false statements or representations • regarding mileage for the^ purposes of obtaining benefits was not before it; rather, the court addressed the issue of whether an injured employee who has made willful misrepresentations regarding mileage reimbursement forfeits his. right to all workers’ compensation benefits.

Concerning the FCE, the record reveals that the evaluator concluded that Ms. Noel had an “excessive number of inconsistent test results” and that her effort was “unreliable” to a degree. Assuming, without deciding, that an FCE qualifies for purposes of La.R.S. 23:1208(A) as a “statement” or “representation,” a false statement or representation in that regard must be wilfully made for the purpose of obtaining benefits. Ms. Noel testified, that she performed the tests to the best of her ability, that she informed the evaluator that she was on medication at the time, that she was told what to do but not given any demonstrations, and that she complained that some of the tests hurt her. Physical Therapist Kevin Sellers, who did not perform the FCE but who testified about the results of the FCE, stated that, based on the test results, “it would appear that the effort she gave was not a reliable effort and that it would suggest she withheld some of her efforts.” However, Mr. Sellers admitted that it was difficult for him to state whether there was a conscious effort on Ms. Noel’s part to not perform to her full capabilities. He explained: “These things vary. The person’s subjective pain levels are involved. There’s an emotional component that’s involved.... ”

The record supports that Ms. Noel did not give a reliable effort. However, that |13fact alone does not result in the ultimate conclusion that she wilfully gave a false representation for the purpose of obtaining benefits. Ms. Noel gave reasonable expía-nations about factors that may have affected the FCE, and the WCJ accepted Ms. Noel as a credible witness. Further, even Mr. Sellers explained that pain levels and an emotional component are involved in an FCE. Thus, we find no manifest error in the WCJ’s determination that Ms. Noel did not violate the provisions of La.R.S. 23:1208 concerning the FCE.

Attorney Fees

Finally, Home Health contends that the WCJ erred in awarding attorney fees when it had a reasonable basis to deny benefits. Ms. Noel seeks additional attorney fees for work done on appeal.

At all pertinent times, La.R.S. 23:1201.2 provided: “Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims.” The WCJ stated:

Now, did the employer act arbitrarily and capriciously? Well, not exactly, because to act arbitrarily encompasses the notion that there had to be some cognitive effort on somebody’s part to do something mean-spirited, and here, there was not a lot of cognition. More properly put, I would say this has [sic] vindictive, punitive, mean-spirited, and in a large measure, just plain dumb, but there’s no legislation for that, so we’re going to have to ratchet this up the moral scale to get it to the level of arbitrary and capricious, but that certainly is where it belongs, although that’s almost a charitable description.

“Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of useemingly unfounded motivation.” Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890. It appears on one hand that the WCJ found that Home Health’s discontinuance of benefits did not rise to the level of willful and unreasoning action, but on the other hand he found that it was vindictive, punitive, and mean-spirited. Regardless of whether the WCJ in effect applied the wrong legal standard or applied the standard incorrectly, the record evidence does not support that Home Health was arbitrary, capricious, or without probable cause in its termination of benefits.

As set forth above, Home Health discontinued benefits based mainly on its determination that Ms. Noel misrepresented her mileage and partially on the invalid FCE and the job tender. Indeed, Ms. Noel admitted that she did not calculate her mileage using the most direct routes available to her, and the WCJ adjusted her mileage down from that submitted by her. Further, the issue of whether Ms. Noel’s job was “available” to her because of the complicating circumstances of this case was an issue of first impression for us, not firmly established by statute or jurisprudence, and Ms. Noel’s effort on the FCE was reported as “unreliable.” Importantly, “an employer should not be penalized for bringing a close legal issue to court.” Burruss v. Centro Mgmt, Inc., 00-1274, p. 2 (La.App. 3 Cir. 2/28/01), 780 So.2d 630, 631. Moreover, much of this case turned on credibility calls, which could have gone in Home Health’s favor. Therefore, we find that the WCJ was at least manifestly erroneous in awarding attorney fees, and we reverse that award. We likewise reject Ms. Noel’s claim for attorney fees for work done on appeal.

DISPOSITION

For the foregoing reasons, we reverse the award of attorney fees and affirm the |,¿judgment below in all other respects. We assess one-half of the costs of this appeal to Teilla Noel and one-half of the costs to Home Health Care 2000, Inc.

AFFIRMED IN PART; REVERSED IN PART.

      . We note that Home Health was insured through the Louisiana United Businesses Self Insurers Fund, but for purposes of this appeal all references will be made to Home Health directly.

      . We note that 2003 La. Acts No. 1204, § 2, repealed La.R.S. 23:1201.2, and its substance appears now in La.R.S. 23:1201(1).


source: Caselaw Access Project

author: JjPETERS, J.

license: Public Domain

text:
    STATE of Louisiana v. Darrell Brent WHATLEY.
    No. 03-1275.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Rehearing Denied April 7, 2004.

      Anthony C. Dupre, Attorney at Law, Ville Platte, LA, for Defendant/Appellant Darrell Brent Whatley.
    Raymond J. LeJeune, Assistant District Attorney, Mamou, LA, for Plaintiff/Appel-lee State of Louisiana.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION Judges.
   JjPETERS, J.

The defendant, Darrell Brent Whatley, was charged by bill of information with the offense of indecent behavior with a juvenile, a violation of La.R.S. 14:81. After a jury convicted him of the offense, the trial court sentenced him to serve seven years at hard labor, suspended two of the seven years, and ordered that he be placed on three years supervised probation after his release from prison. At the end of the sentencing hearing, the defendant orally moved that the trial court reconsider the sentence. The trial court rejected the motion. The defendant then perfected this appeal. All three assignments of error address the correctness of the sentence imposed. For the following reasons, we set aside the sentence and remand the matter for resentencing.

The defendant’s victim was a sixteen-year-old female. He had known the victim’s family for approximately twenty years before the offense. According to the victim’s mother, the defendant was known to the family primarily because the victim’s older sister and the defendant’s daughter began school at the same time and had played ball together through their high school years. The defendant was not a close family friend and had not visited the home for years before the offense giving rise to this conviction.

On the evening of June 10, 2002, the victim’s family had been invited to supper at a relative’s home. The victim chose to stay at home. She testified that at approximately 9:00 or 9:30 p.m., the defendant knocked on the front door of her home. According to the victim, as soon as she opened the door, “[the defendant] just walked in and he started hugging me and he said, where’s your momma at and I was like, well she’s at the camp, and then he started hugging me and he told me how pretty I was and that he loved me and he kissed me.” The victim testified that she 12tried to push him away, but she was unable to break contact with him. At some point, the defendant released her, and, as she retreated to her bedroom, the defendant followed her. She then informed the defendant that she was watching a movie and wanted to be alone.

The victim testified that when she entered her bedroom she sat on the floor and leaned against her bed. The defendant then positioned himself on the bed directly above her, and, as she sat between his legs, the defendant began to rub her back, neck, and the sides of her breasts, all the time telling her that she was beautiful and that he loved her. According to the victim, she got up from the floor and told the defendant that she was leaving. She testified that, at this point, the defendant again hugged her and “kind of slipped his hands in the back of [her] pants.” Breaking free, she ran from the house, got into her car and cranked it up as if to leave. The defendant then left in his truck, and the victim returned to the house and called her older sister to report the incident. The victim’s sister testified that when she arrived at the house fifteen minutes later, the victim was hysterical, was shaking uncontrollably, and did not want anyone to touch her.

The defendant admitted entering the victim’s house and her bedroom but denied fondling her. According to the defendant, the only physical contact occurred when he placed his hand on her shoulder sometime during their conversations and when he hugged her as he left. The jury obviously accepted the victim’s testimony and returned a guilty verdict.

The defendant was fifty-three years old at the time of the offense, was unemployed due to a back injury he sustained in 1988; and was a first felony offender. At the sentencing hearing, he expressed remorse for all that had happened Land testified that he was willing to compensate the victim and her family for the medical expenses arising from the offense.

The victim’s mother testified at the sentencing hearing that, as a result of the incident, her daughter initially refused to leave the house, could not eat, and suffered nightmares when she was able to sleep. The victim received professional counseling for a number of months after the incident but still developed a fear of being around men. According to her mother, when the victim attempted to return to school, she lasted less than one hour before she began crying and shaking. It became necessary to have her educated at home. Because of her emotional problems, the victim lost approximately thirty pounds and continues to suffer from depression. Her mother requested that the trial court impose an incarceration sentence on the defendant despite his first offender status.

In sentencing thp defendant, the trial court stated the following:

I have considered the input from the defendant, I’ve considered the input from the victim’s family,-and I’ve considered the guidelines set forth in the Louisiana Code of Criminal Procedure Article 894.1 and other applicable sentencing statutes, 894.1 part (a) begins where the Court shall impose a sentence of imprisonment if any of the following occur: One, if there’s an undue risk of it occurring again;' Secondly, the defendant is in need of correctional treatment of a custodial environment, and third, which I’ve really considered heavily, that a lesser sentence will deprecate the seriousness of the crime. I’m particularly impressed by the fact that the victim is a young girl of tender years, and I’ve considered deeply the psychological impact that this has had upon her.

In his three assignments of error, the defendant asserts that the trial court imposed an excessive sentence, failed to comply with the mandatory provisions of La. Code Crim.P. art. 894.1 by not giving adequate consideration to the substantial mitigating circumstances presented in this matter, and erred in denying his motion to reconsider his sentence. In • considering these assignments of error, we first note thatj4at the sentencing hearing, the defendant’s counsel objected to the defendant’s sentence in the following manner:

Your Honor, at this time I would like to ... orally move for a reconsideration of the sentence which has just been imposed by the Court ... based upon all of the evidence and factors which were adduced at the hearing which we’ve just had a few moments ago', in other words based on the same evidence.

Louisiana Code of Criminal Procedure Article 881.1(E) provides in pertinent part that “[fjailure ... to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of .excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” The defendant’s motion failed to comply with La. Code Crim.P. art. 881.1(E), and, therefore, this court is relegated to a bare claim of excessiveness. State v. Barling, 00-1241, 01-1591 (La. App. 8 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331.

Louisiana Revised Statutes 14:81(0 provides in pertinent part that “[w]hoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both.” Thus, the trial court sentenced the defendant to the maximum incarceration sentence and suspended only two years of that sentence.

A review of the jurisprudence of this state establishes that numerous decisions have been rendered upholding maximum or near-maximum sentences imposed on individuals convicted of a single count of indecent behavior with a juvenile. However, each of these cases contain factual elements significantly different from the matter before us. See State v. Delgado, 03-46 (La.App. 3 Cir. 4/30/03), 845 So.2d 581 (upholding a near-maximum sentence where a twenty-one-year-old second felony | .^offender was found naked in bed with a thirteen-year-old victim); State v. Kirsch, 02-0993 (La.App. 1 Cir. 12/20/02), 836 So.2d 390 (upholding a maximum sentence where a neighbor and close family friend exposed the eight-year-old victim to sexually explicit material and comments, removed her clothes and viewed her “private parts,” and touched her vaginal area through her clothing), writ denied, 03-0238 (La.9/5/03), 852 So.2d 1024; State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36 (upholding a maximum sentence where a sixty-nine-year-old wheelchair bound man originally charged with aggravated oral sexual battery and aggravated crimes against nature of a three-year-old neighbor benefitted from a plea bargain); State v. Lisotta, 98-646 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (upholding a near maximum sentence where a teacher played pornographic movies for his sixteen-year-old-victim and, on one occasion, removed her clothing, inserted his fingers in her vagina, and told her he was going to have sex with her), writ denied, 99-0433 (La.6/25/99), 745 So.2d 1183; State v. Armstrong, 29,942 (La.App. 2 Cir. 10/29/97), 701 So.2d 1350 (upholding a maximum sentence where a step-grandfather fondled a nine-year-old victim on two separate occasions as she visited in his home).

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaxi-mum sentences are | ^reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The fifth circuit, in Lisotta, 726 So.2d at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:

1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

The offense of indecent behavior with a juvenile is a heinous crime. It involves the use of innocent children to satisfy the sexual desires of an adult and requires the commission of a “lewd or lascivious act” upon, or in the presence of the child. La. R.S. 14:81. In this case, the defendant fondled the victim’s breasts and buttocks. Clearly, society finds such activity inexcusable. Still, the legislature has seen fit to limit the incarceration penalty to a maximum of seven years at hard labor, and as previously stated, the maximum penalty is reserved for the worst offenders. Farhood, 844 So.2d 217.

The defendant was fifty-three years old at the time of the offense and apparently had led a crime-free life. While the evidence indicates that he did use some physical restraint of the victim, the offense entailed no physical violence. Additionally, despite the clear opportunity to do so, the defendant did not attempt to press his physical and timing advantage on his victim. Instead, after she rebuffed his advances, he left. The nature of the defendant’s touching, although inexcusable, is |7not compatible with the degree of touching associated with those cases in which the courts have chosen to render a maximum sentence.

In this case, the trial court “considered deeply the psychological impact” the defendant’s actions had on the victim. However, the record reflects that the victim admitted that she was already somewhat depressed” at the time of the incident because of the recent deaths of her great-grandmother, uncle, and a close family friend. In fact, the victim had seen a physician in April of 2002, or two months before the offense, for “depressive behavior.” The state has not cited any indecent behavior cases comparable to the defendant’s where the maximum sentence was imposed. Considering only a bare claim of excessiveness, and without considering the merits of the specific assignments of error, we still conclude that, based on the record before us, the evidence does not establish that the defendant is one of those worst offenders upon whom the maximum penalty should be imposed. We find that the trial court abused its wide discretion in sentencing the defendant to the maximum incarceration sentence for this particular offense.

DISPOSITION

For the foregoing reasons, we vacate and set aside the sentence imposed on the defendant, Darrell Brent Whatley, and remand the case to the trial court for resen-tencing.

SENTENCE VACATED AND SET ASIDE; REMANDED FOR RESEN-TENCING.

SULLIVAN, J., dissents and would affirm the sentence.


author: LMOORE, J.

text:
    JACKSON SQUARE TOWNE HOUSE HOME ASSOCIATION, INC., Plaintiff-Appellee, v. Thomas V. HANNIGAN, et ux., Defendants-Appellants.
    No. 38,239-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Mills, Turansky & Cox by George H. Mills, Jr., Shreveport, for Appellants.
    Tyler & Johnson by Tommy J. Johnson, Shreveport, for Appellee.
    • Before BROWN, DREW and MOORE, JJ.
   LMOORE, J.

Thomas Hannigan appeals an injunction prohibiting him from ■ enclosing the rear patio of his townhouse in Jackson Square, ordering him to remove any .construction already in place and restore the premises to their condition before he began the project, and assessing attorney fees of $1,875.00. The Jackson Square Towne House Homes Association answers the appeal, seeking additional attorney fees at the trial level. For the reasons expressed, we amend and affirm.

Procedural Background

Hannigan owns a corner unit in Jackson Square, a townhouse development in southeast Shreveport. All owners in Jackson Square are subject to restrictive covenants (“the covenants”) which are enforced by a townhouse association (“the Association”). Article VI(a) of the covenants, entitled “Architectural Control,” provides in part:

No budding, fence, wall, or other structure shall be commenced, erected or maintained upon the properties, nor shall any exterior addition to or change or alteration'therein be made until the plans and specifications showing the nature, kind, shape, height, materials and location of the' same shall have been submitted and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, acting as the architectural control committee!.]

Article VI(b) provides for reasonable attorney fees in the event the Association takes legal action to enforce the covenants.

Hannigan, a retired building contractor, obtained in June 2001 the Association’s approval to put a metal roof over his patioi He testified that the metal did not properly attach to the existing roof, so he installed a wood and shingle roof. He admitted that this did not conform with the plan he ^submitted, but he testified that it looked fine and he received many compliments on it. The new roof came within about two feet of the top of an existing cinder-block wall. Hannigan testified that he and his wife had a terrible problem with birds roosting in the partly-enclosed patio.

In January 2003 Hannigan decided to enclose the two-foot strip around the perimeter of his patio. He admitted he did not first seek the Association’s approval, but by January 21 he had sealed off the 35-foot long, two-foot high strip around the patio.

Byron Vincent, president of the Association, first heard about Hannigan’s project on the afternoon of January 21 and called him about it. When Hannigan admitted he was altering the patio, Vincent advised him to submit a request to the Board of Directors, which was meeting that very night. Hannigan sent a letter and hand-drawn plan; the board deferred action until all board members could look at the actual improvements. By a phone vote taken on January 25, the board voted 6-2 to deny the request, but by this time Han-nigan had already completed the exterior work. All that remained was to tape and float the Sheetrock and paint the interior, which Hannigan did not consider “construction.”

The Association filed this suit on February 3, seeking a permanent injunction and reasonable attorney fees.

At trial in October 2003, Hannigan admitted that he failed to obtain prior approval to wall in his patio. However, he felt that the violation was de minimis and the construction completely in harmony with the existing structure. His counsel argued that this satisfied another part of the | ¡¡covenants, Art. IX, § 2 (with emphasis added):

No building shall be erected, placed or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the Architectural Control Committee as to natural harmony of exterior design with the existing structure and as to location with respect to topography and finished grade elevations.

Hannigan testified that seven or eight other residents have storage sheds, and one has an RV permanently parked in the lot, none of which conforms to the eove-nants, but the Association has taken no action against them. Finally, he testified that one Association member, Joe Leslie, told him that he (Hannigan) had been “getting away with too many things,” and they wanted to “make an example of him.” Hannigan contended that this was proof of bad faith and arbitrary conduct.

Mr. Vincent testified that the Association “went to court” several years ago about the storage sheds, but those suits failed because they were filed “too late.” He added that the normal procedure for owners who wanted to improve their units was to submit plans and wait 30 days for approval, but Hannigan’s enclosure was “very different.” No other unit in the development has an enclosed patio, and the Board of Director’s discussion included concerns that enclosed patios would obstruct other residents’ view.

Both sides offered numerous photos of Hannigan’s patio and the surrounding units.

In written reasons, the district court found that by the time Hannigan submitted his plan to enclose the patio, the work was already 80% complete; [ 4this violated Article VI of the covenants. The court next found that the enclosure was out of harmony with the exterior of the townhouses, contrary to Art. IX, § 2. The court also found insufficient proof that the Association had waived the building restrictions. The court concluded the Association’s action was timely because it filed suit when the construction was not yet complete, and its conduct was neither arbitrary nor capricious. Finally, the court advised the parties to “further discuss” attorney fees or to place the issue on the argument docket.

The Association’s attorney filed two affidavits, claiming a fee of $2,572.50, based on his hourly rate of $175.00.

The court rendered judgment permanently restraining Hannigan from enclosing his patio, and directing him to remove any construction already in place and restore the patio to its prior condition. The court awarded the Association attorney fees of $1,875.00 and costs. As noted, Hannigan has appealed and the Association answered the appeal.

General Principles

Building restrictions are charges imposed by the owner of an immovable in pursuance of a feasible general plan governing building standards, specified uses, and improvements. La. C.C. art. 775. Such restrictions are real rights running with the land and may be enforced by mandatory and prohibitory injunctions. La. C.C. art. 779. A homeowners’ association has the procedural capacity to sue and enforce a subdivision’s building restrictions. Lakeshore Property Owners Ass’n v. Delatte, 579 So.2d 1039 (La.App. 4 Cir.), writ denied, 586 So.2d 560 (1991). When building restrictions require prior approval of any proposed modification, the failure to submit plans and obtain such approval is a violation of the restrictions. Brier Lake Inc. v. Jones, 97-2413 (La.4/14/98), 710 So.2d 1054; Belle Terre Lakes Home Owners Ass’n v. McGovern, 01-722 (La.App. 5 Cir. 1/29/02), 805 So.2d 1286; writ denied, 2002-0818 (La.5/24/02), 816 So.2d 850.

Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. La. C.C. art. 783. Apart from the rule of strict construction, documents establishing building restrictions are subject to the general rules of interpreting contracts. Whitaker Const. Co. v. Larkin Dev. Corp., 34,297 (La.App. 2 Cir. 12/6/00), 775 So.2d 571, writ denied, 2001-0068 (La.3/16/01), 787 So.2d 312. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046; Whitaker Const. Co. v. Larkin Dev. Corp., supra.

The district court’s factual finding that certain conduct violates the building restrictions is subject to manifest error review. Harrison v. Myers, 25,902 (La. App. 2 Cir. 6/22/94), 639 So.2d 402.

Discussion: Harmony with Surrounding Structure or Structures

By his first assignment of error, Hannigan urges the district court erred in comparing his construction with the surrounding structures (plural) instead of his own structure (singular). He argues that Art. IX, § 2 governs; [¿the architectural control committee is to approve modifications “as to the natural harmony of the exterior design with the existing structure!.]” He contends that this court has already applied Art. IX literally, refusing to make a member remove a portable metal storage shed. Jackson Square Towne House Homes Ass’n v. Mims, 393 So.2d 816 (La.App. 2 Cir.1981). He concludes that the trial court committed legal error, mandating de novo review. Referring to the photos, he submits that the enclosure perfectly matches the exterior style of his unit.

The Association responds that like any building restrictions, the covenants must be read for their plain meaning, in their entirety, and to avoid absurd consequences. Whitaker Const. Co. v. Larkin Dev. Corp., supra. It particularly notes that Hannigan’s brief totally ignores Art. VI. It concludes that the court was not plainly wrong to read Arts. VI and IX together or to find that the Association can control structures being built “as they pertain to surrounding structures.”

We have closely read both Art. VI and Art. IX and find the district court did not err in its interpretation of the covenants. Both clearly require the owner to submit a plan and specifications for the approval of the board of directors (acting as the architectural control committee), or the committee itself, before any “exterior addition or change or alteration” (Art. VI) or before any building may be “altered on any lot” (Art. IX). Hannigan admittedly failed to submit a plan and obtain approval before he enclosed his patio. This was plainly a violation of both provisions. Brier Lake Inc. v. Jones, supra.

17Moreover, Art. IX provides what the plan and specifications must show, while Art. VI expressly states that the construction must be in harmony with the existing structures. There is no showing that this requirement — that the exterior addition or alteration to be in harmony with the existing structures — would lead to absurd consequences or defeat the purposes of the covenants. In short, we perceive no error in the district court’s interpretation or application of these articles.

By his second assignment, Hanni-gan advances the alternative argument that even if the court properly interpreted the covenants, it committed manifest error in finding his construction was out of harmony with the surrounding structures. Again referring to the photos and to his own testimony, he argues that his enclosure is “more harmonious with the other townhomes than some of the other patios and out buildings.”

The Association responds that the appropriate standard of review is manifest error. Harrison v. Myers, supra. It reiterates that no other unit in Jackson Square has an enclosed patio, so the district court’s finding cannot be plainly wrong.

The district court carefully described the evidence and concluded:

Examination of the testimony and the photographic evidence reveals that the construction is, in fact, out of harmony and-inconsistent with the exterior of the town homes and is thus a violation of Art. 9, § 2[J Specifically, no townhouse has a fully enclosed patio; therefore, it cannot be said to be in harmony.

Nothing contradicts the finding that Hannigan’s unit is the only one in the development with an enclosed patio. The photos show that the enclosure is similar in style and color to Hannigan’s unit but that it stands |sout from the rest of the back patios. On this record, we simply cannot say the district court was plainly wrong to find it out of harmony with the surrounding structures. Harrison v. Myers, supra.

By his third assignment, Hannigan urges the district court erred in upholding the architectural control committee’s decision because the committee failed to apply the standards required by the covenants. The thrust of the argument is that the committee should have compared the patio enclosure only with Hannigan’s townhouse, not with the rest of the surrounding structures. For the reasons already discussed, the district court did not err in requiring harmony with existing structures; a fortio-ri, the board did not err in applying the same standard. This assignment of error lacks merit.

Timeliness of Suit

By his fourth and fifth assignments, Hannigan urges the suit was untimely. He cites this portion of Art. IX, § 2:

[I]f no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.

He contends the court was plainly wrong to disregard his testimony that construction was complete by the time the Association filed suit on February 3. He concedes that no Louisiana case addresses this issue, but he submits that other state jurisprudence is persuasive. Specifically, he cites Dodson v. Fannon, 368 So.2d 270 (Ala.1979), for the proposition that in the procedure clause of a restrictive covenant, “complete” means “substantially complete.”

|9The Association replies that the district court’s finding of substantial completion is factual and can be reversed only if plainly wrong. Peterson Contractors Inc. v. Herd Producing Co., 35,567 (La.App. 2 Cir. 2/27/02), 811 So.2d 130. It further contends that in its entirety, Art. IX, § 2 waives approval only if the association “fails to approve or disapprove within thirty (30) days after plans and specifications have been submitted to it.” Since Hannigan did not submit a timely plan, there was no waiver. Finally, the Association urges that Dodson v. Fannon, supra, is inapposite.

The district court found that the project was not complete on February 3, 2003. While Hannigan, a retired building contractor, may have felt the remaining work was inconsequential, the average homeowner would likely have to hire a professional to tape and float Sheetrock, and perhaps even to paint the finished product. We perceive no manifest error in the district court’s commonsense finding. Peterson Contractors Inc. v. Herd Producing Co., supra.

Moreover, the Association first learned of Hannigan’s project on the afternoon of January 21, when he had already sealed off the 35-foot strip. The board rejected his belated plan on January 25, when he had completed the exterior work. The Association filed suit on February 3, eight days after the vote. On these facts, the district court was entitled to find that the Association moved with suitable alacrity to avoid waiving its claim under Art. IX, § 2. By contrast, in Dodson v. Fannon, supra, the plaintiff learned of the non-conforming construction in June but did not file suit until late August. Mr. Fannon’s unexplained delay perhaps warranted the result in hpthat case, but such a factor is simply not present here. These assignments of error lack merit.

Attorney Fees

By answer to appeal, the Association urges the district court abused its discretion in awarding attorney fees of only $1,875.00, despite the affidavit claiming fees of $2,572.50. The Association argues that Hannigan did not show that the hourly rate or the amount of time claimed was unreasonable. It concludes that the court should normally honor a party’s contractual relationship with its attorney. Salsbury v. Salsbury, 27,062 (La.App. 2 Cir. 6/21/95), 658 So.2d 734.

Hannigan replies only that the issue is moot because the Association is bound to lose on the merits, a position obviously without merit.

Article VI(b) provides for reasonable attorney fees in the event the Association takes legal action to enforce the covenants. Courts may always inquire into the reasonableness of attorney fees as part of their prevailing inherent authority to regulate the practice of law. Rivet v. State, 2001-0961 (La.11/28/01), 800 So.2d 777. The court is not bound by a contingency fee contract or the amount actually charged by the attorney. City of Shreveport v. Chame Gas Corp., 34,958 (La.App. 2 Cir. 8/22/01), 794 So.2d 962, writs denied, 2001-2657, 2660 (La.1/4/02), 805 So.2d 209.

The district court made no finding that the hourly rate or the number of hours charged by the Association’s attorney was excessive. Considering the relatively short time frame for drafting and filing the petition, the average complexity of the issues presented, and the results attained, we findJjjthe fee claimed by the Association’s counsel for his work in the district court was not excessive. We therefore amend the judgment to award the full amount, $2,572.50.

Conclusion

For the reasons expressed, the judgment is affirmed insofar as it granted the permanent injunction in favor of the Association, prohibiting Hannigan from enclosing his rear patio and ordering him to remove any construction already in place and restore the premises to their prior condition. The judgment is amended only to increase the award of attorney fees in the district court to $2,572.50. Costs of appeal are assessed against Hannigan.

AMENDED AND AFFIRMED.

      . The court's written reasons actually referred to "Article 5 of the covenants,” an obvious typographical error.


author: hLOLLBY, J.

text:
    Emmaline WALLACE, Plaintiff-Appellant v. RED RIVER CENTER CORPORATION, Defendants-Appellees.
    No. 38,257-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      James D. Caldwell, Tallulah, for Appellant.
    Yancey, King & Galloway by Robert Kennedy, Jr., Shreveport, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   hLOLLBY, J.

Heirs of Emmaline Wallace (“appellants”) appeal from a judgment of the First Judicial District Court, Parish of Caddo, Louisiana, in favor of defendants/appellees, Red River Center Corporation (“Red River”) and Colony Insurance Company (“Colony”), granting their motion for a summary judgment. For the following reasons, the trial court’s judgment is affirmed.

FACTS

The record indicates that in the early morning hours of February 17, 2002, Ora Youngblood, the daughter of Emmaline Wallace (“Wallace”), came to her mother’s room at Rose View Nursing Center (“Rose View”) and discovered that her mother had sustained a bruise to her right eye and forehead. According to the evidence, Wallace told her daughter that “an employee had beat her up.” The incident was reported immediately to the head nurse, Beverly Walters, who in turn questioned Wallace and was told the same account as the daughter. The Shreveport Police Department was summoned to investigate the matter, and when they interviewed Wallace she repeated the account; however, she was unable to identify which employee allegedly battered her. Wallace was taken to a local hospital for an examination, whereupon she gave the examining physician a conflicting statement that she sustained the injury when she fell down. The attending physician noted that Wallace suffered from dementia.

|aThe record discloses that Gloria Morris (“Morris”), the nurse on duty when the incident occurred, also made conflicting statements regarding her knowledge of the incident. In the report filed by the administrator of Rose View to Colony, Morris is reported to have stated that when she heard Wallace call out that early morning in February, she did go check on her and was told by Wallace that someone had hit her. Morris claimed she checked Wallace’s body, but “never looked at her face.” In her deposition given on January 16, 2002, Morris testified that she never went into Wallace’s room even though she heard Wallace call out for help. Her reasoning was that she was busy making up beds.

Wallace filed this lawsuit based on the allegation that a battery was committed upon her by an employee of Rose View while she was a patient in their care pursuant to La. R.S. 14:35.2. She also asserted a cause of action under the Louisiana Residents, Bill of Rights Act, La. R.S. 40:2010.8, and OBRA Regulations, 42 CFR 483.13(b). Red River, as the operator of Rose View, and Colony as its insurer, were named as defendants to her suit. Subsequently, when Wallace died (from unspecified causes) her surviving children were substituted as party plaintiffs.

Red River and Colony filed a motion for summary judgment. The trial court granted their motion for summary judgment, dismissing appellants’ lawsuit reasoning that “there is clearly insufficient evidence upon which a jury could reasonably reach a verdict in favor of the appellant’s, and, accordingly, there is no genuine issues of material fact.”

|aThe trial court enumerated five written reasons why the motion for summary judgment was granted. This appeal by the appellants ensued.

DISCUSSION

On appeal, appellants list one assignment of error. They contend that the trial court erred in granting the motion for summary judgment, arguing that the “determination of material fact issues remain in dispute.”

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. La. C.C.P. Art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to'judgment as a matter of law. Appellate courts review summary judgment de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Singleton v. Booker, 37,198 (La.App.2d Cir.05/14/03), 847 So.2d 107, writ denied, 2003-2030 (La.11/07/03), 857 So.2d 495.

Although the initial burden in summary judgment remains with the mover to show that no genuine issue of material fact exists, once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Estate of Levitz v. Broadway, 37,-246 (La.App.2d Cir.05/14/03), 847 So.2d 170. Despite the legislative mandate |4that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in' the opponent’s favor. Willis v. Medders, 2000-2507 (La.12/08/00), 775 So.2d 1049. The court must draw those inferences from undisputed facts that are most favorable to thé party opposing the motion for summary judgment. Independent Fire Insurance Co. V. Sunbeam Corp., 1999-2181, (La.02/29/00), 755 So.2d 226; Estate of Levitz, supra.

Appellees contend the trial court was not in error and argue that the only evidence established by appellants is that Wallace did sustain an injury to her right eye and forehead sometime during the early morning hours of February 17, 2000. They argue that the evidence is at best conflicting. Wallace, who appellees contend suffered from dementia, gave two different statements as to how the injury occurred. Because Wallace’s statements concerning the sustained injury were inconsistent, appellees argue that it renders her statements as “hearsay” and “unreliable.” Approximately two months after Wallace gave those conflicting accounts of her injury, her daughter expressed her concerns to Wallace’s physician of her mother’s increased propensity to fall down, suffer injuries and her mother’s diminished capacity with ambulation, which she stated contributed to an increased incidence of falling.

In their reply brief, appellants maintain they are not only asserting a claim for battery, but additionally are setting forth a cause of action under |sthe Louisiana Residents, Bill of Rights Act. Finally, appellants argue that although the evidence presented is circumstantial, they contend it does establish the existence of a genuine issue of material fact sufficient to preclude summary judgment.

We disagree. It is a most unfortunate set of facts; however, this court agrees with the reasoning given by the trial court. The record is clear that in one of Wallace’s accounts she did state that someone beat her up. Nevertheless, she was never able to identify who that was. On the same day, she gave a conflicting account of the incident. The parties do not dispute that Wallace suffered from dementia. When Wallace was later deposed, she was “unable to communicate” and was declared incompetent to testify in the case by her legal counsel. Wallace’s daughter could not exclude any reasonable possibility that her mother fell and sustained the injury from a fall. Nor was the daughter able to articulate any motivation that anyone at the nursing home might have had for committing a battery upon Wallace. Appellants were not able to present any evidence as to who might have allegedly hit her mother. One cannot remove every reasonable hypothesis to conclude that the level of circumstantial evidence precludes any other conclusion but that Wallace was battered by an employee of Rose View. There simply is not sufficient evidence upon which a jury could reasonably reach a verdict in favor of appellants. Accordingly, there are no genuine issues of material fact.

| «CONCLUSION

For the foregoing reasons, we affirmed the trial court’s judgment granting appel-lees motion for summary judgment, dismissing appellants suit. Costs of this appeal are assessed to the appellants.

AFFIRMED.

      . Colony Insurance Company replaced Front Royal Insurance Company as the correct insurer of Rose View Nursing Center.


author: h CARAWAY, J.

text:
    YARNELL ICE CREAM COMPANY and Fireman’s Fund Insurance Company, Plaintiffs-appellees, v. James Gregg ALLEN, Defendant-appellant.
    No. 38,263-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      See also 759 So.2d 1066, 830 So.2d 1120.
    Street & Street, by C. Daniel Street, Monroe, for Appellant. ■
    Hurlburt, Privat & Monrose by M. Blake Monrose, Lafayette, for Appellees.
    Before CARAWAY, PEATMOSS and MOORE, JJ.
   h CARAWAY, J.

This dispute has been before this court on two prior occasions,' Yarnell Ice Cream Co. v. Allen, 33,020 (La.App.2d Cir.5/10/00), 759 So.2d 1066, writ granted, 00-1520 (La.9/15/00), 767 So.2d 699; order recalled, 00-1520 (La.1/17/01), 777 So.2d 472 (hereinafter “Allen I”) and Allen v. Fireman’s Fund Ins. Co., 36,606 (La. App.2d Cir.11/6/02), 830 So.2d 1120, writ denied, 02-2981 (La.2/14/03), 836 So.2d 114 (hereinafter “Allen II”). The second suit in the state district court sought to nullify the judgments of the Office of Workers’ Compensation (“OWC”) resulting from the first ruling in Allen I, but was dismissed under the authority of La. C.C.P. art.2005. The present suit, a repeat of the nullity action addressed in Allen II, was now filed before the OWC. The OWC promptly dismissed the action and the plaintiff appeals. For the same reasons previously stated in Allen I and Allen II, we find the dismissal of this nullity action proper and affirm. In response to the appellee’s answer to the appeal, we also render judgment for damages for frivolous appeal.

Facts and Procedural History

James G. Allen (“Allen”) appeals the OWC’s judgment dismissing his petition with prejudice. Allen’s petition sets forth an action for nullity seeking to nullify two money judgments previously rendered in the prior proceeding which was the subject of this court’s ruling in Allen I. The instant action specifically asserted that the OWC lacked jurisdiction in Allen I to make an award of money damages to the employer for restitution. After a contradictory hearing, the worker’s compensation judge found the [ 2OWC had jurisdiction as a matter of law and dismissed the nullity action. Allen appeals, and Allen’s former employer, Yarnell Ice Cream Company (‘Yar-nell”) and its insurer, Fireman’s Fund Insurance Company (“Fireman’s”), answer seeking damages for frivolous appeal.

Discussion

In Allen I, this court affirmed the OWC’s underlying judgment for $53,172.56 in favor of Yarnell and Fireman’s, as the amount of restitution for fraudulently obtained benefits owed by Allen, pursuant to La. R.S. 23:1208(D). The court also modified the $5,000 civil penalty awarded in Allen I, finding that, instead of the OWC, Yarnell and Fireman’s were properly entitled to the penalty. The court then remanded the case to the OWC to determine the appropriate amount of reimbursement owed by Allen for attorney’s fees, costs and expenses associated with Yarnell and Fireman’s investigation of Allen’s fraudulent claim.

After rendition of the second judgment, Allen petitioned the Fourth Judicial District Court to nullify both judgments of the OWC which resulted from Allen I. Allen urged that the OWC did not have subject matter jurisdiction to award money damages for the employer’s claims. The district court granted Yarnell and Fireman’s exceptions of lack of subject matter jurisdiction and res judicata and Allen appealed. In Allen II, this [.-¡court held that Allen’s jurisdictional challenge to the judgments and any constitutional challenge to the statute were both barred by the operation of La. C.C.P. art.2005. The court explained:

In [Allen I], this court expressly held that the OWC had the authority to enter judgment in favor of the employer and insurer for restitution when the worker had obtained benefits by fraud. This dispute thus “arises out of’ the workers’ compensation laws and the OWC has jurisdiction' to resolve the dispute. The judgments complained of are judgments of the OWC. To the extent that this case touches upon the issue, we expressly disagree with Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 10/2/02), 827 So.2d 547 (judgment vacated, Lanthier v. Family Dollar Store, 02-2663 (La.11/27/02), 836 So.2d 5) that La. R.S. 23:1208 is unconstitutional. Thus, the OWC, not the district court, is the proper “trial court” in which to bring the action for nullity.
% * * *
The gist of Mr. Allen’s argument in this appeal is that the OWC has no jurisdiction to award money damages except in awarding compensation benefits. In the 1999 appeal [Allen I], Allen sought review of the OWC’s reimbursement award of $53,172.56 in restitution. This is an award of money damages made by the OWC. Since this award is encompassed by Mr. Allen’s argument in this appeal, the ground for nullity asserted in his 2001 petition [Allen II] appeared in the record in the first appeal. Likewise, the other effects of the OWC’s judgment challenged in Mr. Allen’s 2001 petition [Allen II] were also apparent at the time of the first appeal. Hence, Mr. Allen’s challenge to the OWC’s jurisdiction and to the constitutionality of the statutes enabling the OWC to enter these awards, including his action challenging the subsequent award for damages for investigation and litigation, is barred by operation of La. C.C.P. art. 2005.

Allen’s present nullity action, now brought before the OWC, is based upon his continued assertion under La. C.C.P. art. 2002(A)(3) that the original judgments were rendered “by a court which does not have jurisdiction over the subject matter of the suit.” The “court” in this instance is the OWC which has specially defined powers of adjudication pursuant to our constitution and the Act. La. Const, art. V, § 16; La. R.S. 23:1310.3 E; LLa. R.S. 23:1208; Wilson v. La. Safety Ass’n of Timberman, 29,263 (La.App.2d Cir.2/28/97), 690 So.2d 974, 978 (“the constitution places in the hands of the legislature the power to carve out the jurisdiction of the OWC”). The “suit” by Yarnell and Fireman’s is their 1998 claim for restitution because of Allen’s fraud. Such suit became specifically recognized as a claim under Section 1208(D) of the Act following a 1997 legislative amendment.

The question, however, in this, Allen’s second attack on the judgments for nullity, is not simply:

Did the OWC have jurisdiction over the subject matter of the employer’s restitution claims in Allen II

Because of the initial appeal of this matter, the additional question under La. C.C.P. art.2005 for this nullity claim is:

Was the ground for this nullity action contained in the record of the Allen I appeal and considered by this court in that appeal?

Article 2005 provides that the judgment affirmed by this court in Allen I may not be annulled when the alleged jurisdictional ground for nullity appears in the record or was considered by this court.

The first question above is a substantive question. In Allen I, we answered the question affirmatively. We said the 1997 amendment to Section 1208 “sets forth that the Office of Workers’ Compensation has jurisdiction to award a reimbursement of benefits.” Yarnell Ice Cream Co. v. Allen, supra at 1071. We explained this ruling by citing two opinions by Louisiana courts: Cajun Bag and Supply v. Baptiste, 94-1218 (La.App. 3d Cir.3/1/95), 651 So.2d 943, which ruled on the jurisdictional question before the 1997 amendment, and Our Lady of the Lake Regional Medical Ctr. v. Helms, 98-1931 (La.App. 1st Cir.9/24/99), 754 So.2d 1049, writ denied, 99-3057 (La.1/17/00), 752 So.2d 863, which ruled on the question after the amendment. The employer’s restitution claim, upon its insertion into the Act by the 1997 amendment to Section 1208, was a “claim arising out of the” Act in 1998 when Yarnell and Fireman’s filed their claim, thus giving rise to the “original, exclusive jurisdiction” of the OWC pursuant to La. R.S. 28:1310.3 E. The inclusion of the restitution claim by the legislature into the Act can also be said to be for the benefit of “administrative agency determinations in worker’s compensation matters” pursuant to Article V, Section 16 of our constitution.

The second question set forth above is a procedural question. The procedural rule of La. C.C.P. art.2005 rests on the policy for the finality of judgments. Therefore, even assuming that this court’s answer in Allen I regarding the jurisdiction of the OWC was incorrect, the mere consideration by the court in Allen I of the issue of subject matter jurisdiction bars Allen from challenging subject matter jurisdiction for a second time through a nullity action. This procedural question under La. C.C.P. art.2005 has also previously been answered by this court in Allen II. Thus, Allen II may be read as this court’s reaffirmation that the employer’s restitution action is within the original and exclusive jurisdiction of the OWC and that, because of La. C.C.P. art.2005, Allen had no cause of action in any forum to nullify the judgments that resulted from Allen I.

Accordingly, we affirm the OWC’s dismissal of this nullity action for all the same reasons previously given by this court in Allen I and Allen II.

Next, appellees argue that Allen’s persistent appeal of the jurisdictional issue is designed to harass them and request an award of damages for frivolous appeal pursuant to La. C.C.P. art. 2164. An appeal will not be deemed frivolous unless it is taken solely for delay, fails to raise a serious legal question, or counsel does not seriously believe in the proposition of law he is advancing. Houston v. Blue Cross Blue Shield of Louisiana, 37,-097 (La.App.2d Cir.4/9/03), 843 So.2d 542, writ denied, 2003-1342 (La.9/19/03), 853 So.2d 641; LaPoint v. Beaird Industries, Inc., 34,620 (La.App. 2 Cir. 5/9/01), 786 So.2d 301, writ denied, 01-1611 (La.9/14/01), 796 So.2d 686. Rather, appeals are favored and appellate courts are reluctant to impose damages for frivolous appeals. LaPoint v. Beaird, supra; Tillmon v. Thrasher Waterproofing, 00-395 (La.App. 4th Cir.3/28/01), 786 So.2d 131. On those rare occasions when such damages are awarded, the amounts are modest and may consist of an amount representing a reasonable attorney’s fee award for answering and defending the appeal. See, Mitchell v. Accent Construction Co., 00-996 (La.App. 4th 17Cir.3/14/01), 785 So.2d 864; Allen v. IMTC, Inc., 567 So.2d 1155 (La.App. 3d Cir.1990).

Based upon our review of Allen I and Allen II, we find this appeal, and indeed this nullity action from inception, to be frivolous. This court in its two prior rulings articulated substantive and procedural reasons explaining why this nullity proceeding is improper. Accordingly, we award damages for frivolous appeal in the amount of $1,500.

Conclusion

Finding no error, we affirm the OWC judgment dismissing appellant’s petition for nullity. Damages for frivolous appeal are hereby awarded in the amount of $1,500. Costs of the appeal are assessed to appellant.

AFFIRMED AND DAMAGES FOR FRIVOLOUS APPEAL GRANTED.

      . La. R.S. 23:1208(D) provides: In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

      . After Allen I, upon remand, the OWC entered a second judgment against Allen for $13,684.66 representing the costs of investigating and litigating the fraudulent claim.

      . La. C.C.P. art.2005 provides, in pertinent part: "A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.”

      . La. C.C.P. art. 2164 provides as follows:
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.


author: hPEATROSS, J.

text:
    Robert & Collene CHAMBLESS, Plaintiffs-Appellees v. Sheila A. PARKER, Defendant-Appellant.
    No. 38,276-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Paul Loy Hurd, Monroe, for Appellant.
    Fred R. McGaha, Monroe, for Appellees.
    Before PEATROSS, DREW & LOLLEY, JJ.
   hPEATROSS, J.

This appeal arises from a denial of Defendant Sheila Parker’s (“Parker”) motion for summary judgment and grant of Plaintiffs’ Robert and Collene Chambless, Jerry and Marilyn Moses and Hollis Faulk (“Plaintiffs”), motion for summary judgment. Parker now appeals the judgment of the trial court.. For the reasons stated herein, we affirm.

FACTS

In July 2000, Parker purchased two lots (Lots 10 and 11) in the “Frost Estates,” a subdivision in Ouachita Parish. Parker purchased the lots with 'the intent of renting out mobile home slots. In late August or early September 2000, Parker had placed four mobile homes on the properties and had leased some of them for residential occupancy. On October 27, 2000, Plaintiffs filed suit against Parker alleging that, according to the building restriction found in the deeds from the original landowner to the first' vendees of Lots 10 and 11, the owner of the land could have no more than one residence on the land and the land could not be used for anything other than a residential purpose. The restriction found in the original deeds provided that:

Said property shall be used for residential purpose only and only one residence shall be constructed thereon, the same to cost not less than $10,000.

This restriction was not in the deeds given to Parker by her predecessor in title when she purchased the land; however, the building permits she received from the Ouachita Parish Clerk of Court’s office state that she | ^should make herself aware of possible deed restrictions. In their lawsuit, Plaintiffs sought to enjoin Parker from using Lots 10 and 11 for any commercial purposes, other than what is consistent with the restriction found in the deeds.

Subsequently, Plaintiffs filed a motion for summary judgment with the trial court and Parker also filed a motion for summary judgment, arguing that the restriction in the original deeds does not qualify as a building restriction because the subdivision does not meet the requirements of a general development plan as required by La. C.C. art. 775, et seq. La. C.C. art. 775 provides:

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.

Further, Parker asserted that the restriction in the original deeds does not even qualify as a predial servitude because it does not meet the requirements for predial servitudes found in La. C.C. art. 646, et seq., and La. C.C. art. 697, et seq.

In addition, Parker contended that, if the court found that the restriction in the deeds did qualify as a building restriction, this restriction has been abandoned pursuant to La. C.C. art. 782, which provides:

Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When the entire plan is abandoned the affected area is freed of all restrictions; when a particular re-
striction is abandoned, the affected area is freed of that restriction only.

lain support of her argument, Parker submitted evidence that she asserted showed that the surrounding communities of her subdivision consist of mobile homes and mobile home parks, that two lots in her subdivision have mobile homes on those lots and that one lot owner in her subdivision is operating a commercial welding service. Finally, Parker also contends that, if the court found that the restriction in the deeds did qualify as a building restriction, she is following the restriction because the mobile homes on her property are residential activity.

The trial court granted Plaintiffs’ motion for summary judgment, finding that the restriction in the deeds is either a building restriction or a predial servitude; and, consequently, since no genuine issue of material fact was remaining, Plaintiffs were entitled to their injunction against Parker. Parker’s motion for summary judgment was denied. Parker now appeals, raising the following assignments of error (verbatim):

1. The district court committed legal error in finding that the Frost language meets all the legal requirements to comprise “building restrictions” under La. C.C. art. 775 et seq;
2. The district court committed legal error in finding that the Frost language meets all the legal requirements to comprise a “predial servitude” under La. C.C. art. 646 et seq;
3. The district court committed legal error in failing to find that, assuming that the Frost language is a “building restriction” under La. C.C. art. 775 et seq., said building restrictions has been abandoned under La. C.C. art. 782, in relation to any prohibition of the placement of multiple mobile homes on lots 10 and 11; and,
4.The district court’s factual finding that renting mobile home slots for residential mobile homes is inconsistent with the Frost language, in that this activity (1) is a “residential” activity, and (2) does not involve the construction of any improvement that are prohibited by the Frost Language.

| ¿DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). 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, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Building Restrictions

Parker argues that the subdivision does not meet the requirements of La. C.C. art. 775, because the building restriction in the deeds is not part of a general development plan; and, thus, it cannot be enforced. We do not agree.

The property owners in the subdivision have the right to bring enforcement actions to prohibit any use of the property that does not comport with the general plan of development. See La. C.C. art. 779 and comments thereafter. Courts in Louisiana have held that, in order for a building restriction to be enforced, however, it must be part of a general development plan. See R And K Bluebonnet, Inc. v. Patout’s of Baton Rouge, Inc., 521 So.2d 634 (La.App. 1st Cir.1988). Building restrictions constitute real rights only in the framework of subdivision planning. Ezell v. Vaughn, 496 So.2d 534 (La.App. 1st Cir.1986). In Murphy v. Marino, 60 So.2d 128 (La.App. 1st Cir.1952), the court held that, in order to find that a general development plan existed, the restriction had to be applied to at least a particular part of the subdivision, known to each purchaser and thereby, by reference or implication, forming a part of his contract with the sub divider. In Richard v. Broussard, 378 So.2d 959 (La.App. 3d Cir.1979), the court found that a building restriction did not exist because the original landowner did not have an orderly subdivision plan. The court, in Richard, supra, found, that formal planning' of a subdivision, platting by a surveyor, subdividing lots from the beginning and an evident scheme or plan of the subdivision would show that a general development plan existed.

The fact alone that restrictive covenants are inserted into individual acts of sale does not establish that they were not intended to pursue a general plan of development for the subdivision. Gwatney v. Miller, 371 So.2d 1355 (La.App. 3d Cir. 1979). In addition, Louisiana law does not require that the restriction exist in every deed in the lots of a subdivision in order for a general development plan to exist. On the contrary, Louisiana law provides that a general development plan can exist even if only most of the deeds of lots in a subdivision contain the restriction. La. C.C. art. 775 cmt. e provides, in pertinent part:

| fíWhen restrictions are imposed by stipulations inserted in individual acts of sale, care should be taken to impose uniform restrictions on most, if not all, individual lots in the subdivision. Omission to make the restrictions uniform or to insert them in a substantial number of sales may be taken to indicate absence óf a general development plan. (Emphasis added.)

As real rights, building restriction clauses are not rights that are personal to the vendor. Five N Company, L.L.C. v. Singer A & P Remainder Trust, 97-2165 (La.App. 1st Cir.11/6/98), 721 So.2d 1066, writ denied, 98-3051 (La.2/5/99), 738 So.2d 4. Building restrictions inure to the benefit of all other property owners under a general plan of development: such restrictions are real rights running with the land. Blessey v. McHugh, 94-0555 (La.App. 1st Cir.7/27/95), 664 So.2d 115. Once a building restriction has been imposed upon the land by a properly recorded act which transfers the property, the restrictions affect future assigns and vendees, even if the building restriction is later omitted in subsequent deeds. Clark v. Reed, 122 So.2d 344 (La.App. 2d Cir.1960); McGuffy v. Weil, 240 La. 758, 125 So.2d 154 (1960). Moreover, the fact that no subdivision plat was of record when the building restriction was created does not affect the validity of the restrictions. Fitzwater v. Walker, 281 So.2d 790 (La.App. 3d Cir.1973).

Building restrictions are a means of insuring the lasting aesthetic and monetary value of property. 1626 Corp. v. Merriam, 329 So.2d 885 (La.App. 1st Cir.1976), writ refused, 332 So.2d 800 (La.1976). The owners of lots in a subdivision with building restrictions expect those restrictions to be enforced.

|7In the case sub judice, there were eighteen lots established in the subdivision. Of those eighteen lots, the deeds in thirteen of the lots contained the restrictive language. Even though not all the deeds contained the restriction, most of the deeds did contain it, including' the deeds to Lots 10 and 11. The restrictive language in the deeds to each of the thirteen lots was exactly the same. An orderly subdivision plan was established by Benton Frost in 1963. Mr. Frost formerly planned his subdivision, had it platted by a surveyor and subdivided his land .into lots from the beginning. The plat of this subdivision was filed into the Plat Book in the Ouachita Parish records in 1963. In reviewing the layout of the lots in the subdivision and the characterization of each lot, we conclude that a general plan of development was. established by Mr. Frost. Since the restriction was inserted in pursuance of a general development plan, there is no doubt that the restrictive language in the deeds to the owners of these lots was a building restriction. We find that Parker’s land is subject to a valid building restriction and is enforceable in this subdivision. Parker’s first assignment of error is without merit.

Building Restriction Abandonment

Parker asserts that, even if this court finds that an enforceable building restriction exists in this case, the restriction has been abandoned due to a number of violations of it that have taken place in the subdivision that have not been enforced. We find no merit in this assertion.

After a plaintiff seeking an injunction enforcing a building restriction has established a violation of the restriction, the burden shifts to the|sdefendant of the restriction to prove its abandonment.

Harrison v. Myers, 25,902 (La.App.2d Cir.6/22/94), 639 So.2d 402. La. C.C. art. 782 cmt. b provides, in pertinent part:

Abandonment of the entire restrictive plan is ordinarily predicated on a great number of violations of all or most restrictions. Upon abandonment of the entire plan all restrictions fall, and the use of the property is free for all purposes. ‘ Abandonment of a particular restriction is predicated on a sufficient number of violations of that restriction in relation to the number of lots affected by it. Thus, if a restriction requires that a building should face a certain street, or should be erected a number of feet from the property line, only violations on property subject to the same restrictions are considered in determining the question of abandonment. When the violations are sufficient in number to warrant the conclusion that a particular restriction has been abandoned, the property is freed of that restriction only. (Emphasis added.)

In deciding whether there has been abandonment, the court must decide what the subdividers intended the scheme or plan to be and then inquire into alleged violations to determine whether the plan has been disrupted. East Parker Properties, Inc. v. Pelican Realty Co., 335 So.2d 466 (La.App. 1st Cir.1976), cert. denied, 338 So.2d 699 (La.1976).

Whether a waiver or relinquishment of a restriction has occurred by common consent or universal acquiescence depends upon the facts of each case. Lakeshore Property Owners Association, Inc. v. Delatte, 579 So.2d 1039 (La.App. 4th Cir.1991), writ denied, 586 So.2d 560 (La.1991). The character, materiality, number of the violations and their proximity to the objecting residents are all factors to be considered in determining if a restriction has been abandoned by acquiescence. Harrison, supra. Insubstantial, technical or infrequent violations of a restriction, which are not subversive to the general plan or scheme, weigh little towards | (¡establishing an abandonment. Id. Further, in order to find that abandonment in a subdivision has occurred, the property owner against whom abandonment is asserted must have known of the alleged violations or have had a duty to know. Schwab v. Kelton, 405 So.2d 1239 (La.App. 1st Cir.1981), writ denied, 407 So.2d 749 (La.1981).

The intended general development plan in the instant ease was that of a residential subdivision. Two of Parker’s alleged violations of the building restriction in the subdivision are not violations at all. It is not a violation of the building restriction to have a mobile home on a lot owner’s property if that is the owner’s residence and the only residence on that property. Further, the issue of mobile homes and mobile home parks in surrounding neighborhoods is irrelevant. The only possible technical violation of the building restriction is that of the lot owner who Parker alleges is operating a commercial welding service. Parker has not shown that Plaintiffs even knew of this alleged welding service and has not submitted any other evidence to show that there are any other violations of the building restrictions occurring in the subdivision. As Louisiana law sets forth, one technical violation of the restriction is not enough to establish that the building restriction, which is enforceable against everyone living in the subdivision, has been abandoned. We find that the building restriction has not been abandoned and summary judgment is appropriate; and, therefore, Parker’s third assignment of error is without merit.

_|Residential or Commercial Use of Property

Parker contends that the mobile homes on her lots are residential and not commercial; and, therefore, they do not violate the building restriction. We do not agree.

The building restriction provides that the use of the property should be for residential purposes only and that only one residence may exist on each property. Parker cites both Vienna Bend Subdivision Homeowners Association v. Manning, 459 So.2d 1345 (La.App. 3d Cir.1984), and Concord Estates Homeowners Association, Inc. v. Special Children’s Foundation, Inc., 459 So.2d 1242 (La.App. 1st Cir.1984), in support of her argument that she is not violating the building restriction. We find that those cases are inapplicable to the case sub judice. Both of those cases dealt with homes for mentally challenged individuals operated by nonprofit corporations in subdivisions that contained restrictions similar to the restriction in this case. The courts in both cases found that the use of those homes was not for commercial activity. The use of both those homes was through nonprofit corporations.

In contrast, in the instant case, Parker rented mobile home slots for profit. Parker has already rented four mobile homes slots and has ten total available mobile home slots open to rent on Lot 10. This is a commercial use of the property and it violates the building restriction not only because it is a commercial use, but also because more than one residence exists on the property. Parker is in violation of the building restriction; and, consequently, her last assignment of error is without merit. Finally, since Inwe find that the restriction in the deed to Parker’s lots is a building restriction that is enforceable and has not been abandoned, we pretermit discussion of Parker’s assignment of error concerning predial servitudes.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Plaintiffs’ Robert and Collene Chámbless, Jerry and Marilyn Moses and Hollis Faulk, motion for summary judgment and denial of Defendant Sheila Parker’s (“Parker”) motion for summary judgment is affirmed. Costs of this appeal are assessed to Sheila Parker.

AFFIRMED.

      . Parker calls this restriction the "Frost Language,” since Mr. Benton Frost was the original owner of all lots in the Frost Estates and placed this restriction in most of the deeds to the lots in this subdivisión.

      . La. C.C. art. 779 provides:
      Building restrictions may be enforced by mandatory and prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil Procedure.

      . La. C.C. art. 777 provides, in pertinent part:
      Building restrictions are incorporeal im-movables and real rights likened to predial servitudes.