author: | VICTORY, J.

text:
    Patricia RICHARD, On Behalf of Edna Deville v. LOUISIANA EXTENDED CARE CENTERS, INC.
    No. 2002-C-0978.
    Supreme Court of Louisiana.
    Jan. 14, 2003.

      J. Minos Simon, Lafayette, Chris P. Vil-lemeratte, Counsel for Applicant.
    Victor H. Sooter, Alexandria, Elizabeth B. Hilburn, Counsel for Respondent.
    E. Joseph Bleich, Ruston, Counsel for Louisiana Nursing Home Association, Amicus Curiae.
   | VICTORY, J.

At issue in this case is whether plaintiffs allegation under the Nursing Home Residents’ Bill of Rights, La. R.S. 40:2010.8, et seq. (the “NHRBR”) that she was negligently allowed to fall out of her wheelchair at a nursing home must be submitted to a medical review panel pursuant to the provisions of the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (the “MMA”). After reviewing the record and the applicable law, we affirm the judgment of the Third Circuit Court of Appeal holding that medical malpractice claims against a nursing home qualified under the MMA must be brought pursuant to the provisions of the MMA; however, we remand this case to the trial court to determine whether plaintiffs allegations of negligence are medical malpractice claims under Louisiana law.

FACTS AND PROCEDURAL HISTORY

The euratrix of Edna Deville, a 92-year-old double amputee, filed a petition on Ms. Deville’s behalf alleging that while she was a resident of Senior Village Nursing Home in Opelousas, on March 16, 2001, she sustained serious bodily injury. Suit l^was filed against the operator of Senior Village, Louisiana Extended Care Centers, Inc. (“LECC”) under the NHRBR, alleging the following:

On or about March 16, 2001, petitioner, Edna Deville suffered severe, brutal and barbaric injuries to her face, head, nose and arms, including but not limited to a deep stellate laceration of the forehead, bilateral temporal contusions, brain hemorrhage, and contusions to the arms and elbows, when she was viciously attacked by an employee of Senior Village Nursing Home, or alternatively, allowed to fall from her wheelchair.
The injuries sustained by Edna De-ville were caused by acts of defendant in violation of the Nursing Home Patients’ Bill of Rights in the following, non-exclusive, particulars:
(a) employing the individuals who assaulted and battered Edna Deville for which defendant is vicariously liable;
(b) failing to protect Edna Deville from abusive employees;
(c) failing to treat Edna Deville fairly, courteously, and depriving her of her dignity; and
(d) failing to protect Edna Deville from injury and in so failing, failing to provide appropriate health care.

LECC filed a petition for judicial review under the MMA, and/or an exception of prematurity, asserting that the causes of action involve claims of professional negligence or malpractice, and therefore must first be submitted to a medical review panel as required by the MMA. The trial court granted the exception of prematurity and dismissed the plaintiffs demands without prejudice. The court of appeal affirmed in part and reversed in part, finding that plaintiffs claims of “unintentional tort and/or breach of contract” are governed by the MMA, but that her intentional tort claims are not, and thus remanded the matter for further proceedings. Richard v. La. Extended Care Ctrs., Inc., 01-1492 (La.App. 3 Cir. 3/6/02), 809 So.2d 1248. We granted plaintiffs writ application to determine whether medical malpractice claims against a nursing home that is a qualified health care provider under the MMA must be submitted to a medical review panel under the MMA or can be brought outside of the provisions of the MMA under the NHRBR. Richard v. La. Extended Care Ctrs., Inc., 02-0978 (La.6/14/02), 817 So.2d 1149.

DISCUSSION

Private nursing homes have been regulated by the state since 1958. See La. R.S. 40:2009.1. In 1978, the Legislature established formal complaint procedures available to “[a]ny person having knowledge of the alleged abuse or neglect of a patient of a nursing home, ... or who ... has knowledge that a nursing home patient is not receiving care and treatment to which he is entitled under state or federal laws ...” La. R.S. 40:2009.13. Complaints are investigated by the Department of Health and Human Resources, and, if made in good faith, render the complainant immune from civil liability that may be asserted as a result of the complaint. La. R.S. 40:2009.13(E), 40:2009.14, et seq.

In 1985, the Legislature adopted the NHRBR for nursing home residents, enforceable by the DHHR and by a private civil action. La. R.S. 40:2010.6-2010.9. The legislative intent for these provisions is stated in La. R.S. 40:2010.6:

The legislature finds that persons residing within nursing homes are isolated from the community and often lack the means to assert their rights as individual citizens. The legislature further recognizes the need for these persons to live within the least restrictive environment possible in order to retain their individuality and some personal freedom. It is therefore the intent of the legislature to preserve the dignity and personal integrity of residents of nursing homes through the recognition and declaration of rights safeguarding against encroachments upon nursing home residents’ right to self-determination. It is further the intent that the provisions of R.S. 40:2010.6 through R.S. 40:2010.9 complement and not duplicate or substitute for other survey and inspection programs regarding nursing homes.

|4La. R.S. 40:2010.6. The NHRBR requires that all nursing homes adopt and make public a statement of the rights and responsibilities of its residents and treat such residents in accordance with the following rights: (1) to civil and religious liberties; (2) to free communication, including use of mail, telephone, overnight visitation outside the nursing home with family and friends, flexible visitation hours; (3) to present grievances; (4) to manage one’s own finances; (5) to be informed of what services he has to pay for without governmental assistance; (6) to be adequately informed of his medical condition and proposed treatment, and participate in the planning of such treatment, including the right to refuse treatment, unless otherwise indicated by the resident’s physician; (7) “to receive adequate and appropriate health care and protective and support services, including services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules promulgated by the Department of Health and Hospitals;” (8) to have privacy; (9) to be treated with dignity; (10) to be free from mental and physical abuse and from physical and chemical restraints, except in limited circumstances; (11) to be transferred and discharged under certain circumstances; (12) to select a personal physician; (13) to retain and use personal clothing and possessions; (14) to copies of rules and regulations; (15) to information concerning bed reservation in case of hospital stay; (16) to prompt response to all reasonable requests and inquires; (17) to withhold payment to physician if not visited; (18) to refuse medical research request; (19) to use tobacco; (20) to consume alcohol; (21) to reasonably retire and rise; (22) to have change in medical condition reported. La. R.S. 40:2010.8.

| KLa. R.S. 40:2010.9 clearly provides for civil enforcement of any violation of La. R.S. 40:2010.8 as follows:

A. Any resident whose rights, as specified in R.S. 40:2010.8, are deprived or infringed upon shall have a cause of action against any nursing home or health care facility responsible for the violation. The action may be brought by the resident or his curator, including a curator ad hoc. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in such action shall be entitled to recover reasonable attorney’s fees, costs of the action, and damages, unless the court finds that the losing plaintiff has acted in bad faith with malicious purpose, and that there was an absence of a justicia-ble issue of either law or fact, in which case the court shall award the prevailing party his reasonable attorney fees.
B. The remedies provided in this action are in addition to and cumulative with other legal and administrative remedies available to a resident and to the Department of Health and Hospitals or other governmental agencies.

La. R.S. 40:2010.9.

Plaintiff claims her rights under the NHRBR were violated in that she had the right to be free from physical abuse and the right to receive appropriate and adequate health care under La. R.S. 20:2010.8 and therefore, she has a cause of action against the nursing home under La. R.S. 40:2010.9, pursuant to which jurisdiction lies in the district court and under which she is entitled to actual damages, plus attorney fees and costs. Further, she claims that because La. R.S. 40:2010.9(B) provides that this remedy is “in addition to and cumulative with other legal and administrative rights available to a resident,” she may bring this action regardless of any other remedies to which she may be entitled, such as the MMA. Defendant claims, and the lower courts |fisummarily agreed, that plaintiffs negligence claims arise from “medical malpractice” and therefore must first proceed through a medical review panel under the provisions of the MMA. According to plaintiff, even if her claims are medical malpractice claims under the MMA, that does not prevent her from bringing these claims under the NRHBR and bypassing the medical review panel procedure.

As set out in La. R.S. 40:1299.47(B)(1)(a)(i), “[n]o action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.”

Courts have expressed different views on whether a medical malpractice claim against a nursing home qualified under the MMA must be brought pursuant to the provisions of the MMA, or may be brought under the NHRBR. Two months after the Third Circuit issued the opinion in this case, ruling that plaintiffs negligence claims against the defendant had to be presented to a medical review panel under the MMA, another panel of the Third Circuit rendered a contrary opinion in a case where the nursing home allegedly allowed a patient to fall out of her wheelchair. Pender v. Natchitoches Parish Hospital, 01-1380 (La.App. 3 Cir. 5/15/02), 817 So.2d 1239. In Pender, the accident was allegedly caused by the staff allowing the resident to fall out of her wheelchair, despite knowledge that she required restraints and/or constant supervision. Based on the fact that the accident occurred when the resident was not receiving any specific medical treatment, the majority held the resident’s claim did not fall within the confines of the MMA and was not governed by its procedural devices. A dissent cited Richard for the proposition that the plaintiffs claims for negligence |7against the nursing home, based on health care services rendered, whether brought under the MMA or the NHRBR, must be reviewed by a medical review panel prior to suit.

Likewise, two different sections of the federal court for the Eastern District of Louisiana have disagreed upon whether a claim for negligent care against a nursing home is covered by the provisions governing the MMA. In Schenck v. Living Centers-East, Inc., 917 F.Supp. 432 (E.D.La.1996), a case alleging negligent care by the nursing home and asserting claims of breach of contract and violation of the NHRBR, the court held that the one-year statute of limitations applicable to medical malpractice claims did not apply to the breach of contract claim, holding that “nursing homes” were not health care providers under La. R.S. 9:5628. 917 F.Supp. at 436. Further, the court held that plaintiffs claim under the NHRBR was not duplicative of the tort claim and refused to dismiss it, on the basis that the remedies provided by the NHRBR are “in addition to and cumulative with other legal and administrative remedies available to a resident ....” Id. In Petre v. Living Centers-East, Inc., 935 F.Supp. 808 (E.D.La.1996), the court specifically expressed its disagreement with Schenck and held that because plaintiffs claim for negligent care “be it in contract or tort, ... is essentially one for medical malpractice,” and because a nursing home is a “health care provider” under the MMA, the one-year statute of limitations applicable to medical malpractice claims, La. R.S. 9:5628, was applicable to the case.

Also, the Second Circuit, in a case involving whether suspension or interruption of prescription occurred by virtue of the filing of a medical review panel complaint, which also contained allegation of violation under the NHRBR, stated that:

First, we observe the claims against defendants herein, regardless of how they were characterized, are all malpractice claims against health care providers. Accordingly, under the provisions of La. R.S. 40:1299.47, these claims must be reviewed by a medical review panel.

Gorham v. HCA Health Services of Louisiana, 34,721 (La.App. 2 Cir. 5/17/01), 786 So.2d 348.

Against that backdrop, we must interpret the NHRBR and the MMA to determine how they apply to a medical malpractice claim against a nursing home, a claim to which both statutes seem to apply. The law of statutory interpretation in this area is as follows:

A statute’s meaning and intent is determined after consideration of the entire statute and all other statutes on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the Legislature in its enactment of the statute. Where it is possible, the courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions.

ABL Mgmt. v. Board of Supervisors, 00-798 (La.11/28/00), 773 So.2d 131, 135 (cites omitted); La. C.C. art. 13.

As this Court stated in Sewell v. Doctors Hosp.,

The principal purpose of the Medical Malpractice Act is to limit the liability of health care providers who qualify under the Act by maintaining specified basic malpractice insurance and by contributing a surcharge to the Patients Compensation Fund. As long as a health care | (¡provider remains qualified under the Act, the health care provider and his insurer are liable for malpractice only to the extent provided in the Act.
The Medical Malpractice Act’s limitations on the liability of a health care provider are special legislation in derogation of the rights of tort victims. As such, the coverage of the Act should be strictly construed. These limitations apply only in cases of liability for malpractice as defined in the Act. Any other liability of the health care provider to the patient is not subject to these limitations.

600 So.2d 577, 578 (La.1992).

In our view, the Legislature did not intend for the NHRBR to repeal, supplant, or replace the MMA’s application to medical malpractice claims against nursing homes. First, “qualified health care providers,” such as LECC in this case, have furnished the requisite financial responsibility and paid a surcharge to a state-created entity, entitling them coverage under the MMA. What would be the point of this if they were not entitled to the “principal advantages” for qualified health care providers in actions against them for malpractice, i.e., the right to a medical review panel, and the limitation of liability? See Id., at 578, n. 1; Hutchinson v. Patel, 93-2156 (La.5/23/94), 637 So.2d 415.

Second, the Legislature amended the MMA in 2001, sixteen years after the enactment of the NHRBR, to include “nursing homes” as an enumerated sub-category of qualified health care providers in La. R.S. 40:1299.41(A)(1), rather than the prior inclusion of nursing homes under the definition of “hospitals” in La. R.S. 40:1299.41(A)(4). Had the Legislature intended that malpractice claims against nursing homes be exempt from the requirements of the MMA, then surely they would Imnot have reinforced the fact that a “nursing home” is a health care provider under the MMA by specifically including it in the list of enumerated health care providers found in La. R.S. 40:1299.41(A)(1). Further, it is equally clear that, at the time the NHRBR was enacted in 1985, it was never intended to remove nursing homes from the coverage of the MMA, as this would have caused major uproar by the nursing home interests throughout the state. Instead, it was supported by these nursing home interests, and in fact, there was no reference to the MMA in the entire legislative record of the NHRBR. See “Minutes of Meetings of the House Committee on Health and Welfare;” “Minutes of Meetings of the Senate Committee on Health and Welfare;” the original, engrossed and enrolled versions of Act No. 734.

We find that the NHRBR and the MMA can be harmonized. The NHRBR contemplates matters far beyond the scope of the MMA. When the original bill was presented to the House, the sponsor of the bill stated that “this bill would provide a means for individuals residing in nursing homes of protecting their rights to live within the least restrictive environment possible in order to retain their individuality and some personal freedom.” Minutes of Meeting, House Committee on Health and Welfare, June 7, 1985, pages 13-14. Because such residents “are isolated from the community and often lack the means to assert their rights as individual citizens,” the Legislature provided that a successful claimant is entitled to attorneys’ fees, in addition to costs and damages, in order to better enable residents to find legal representation. Accordingly, the NHRBR addresses twenty-two different rights of nursing home residents. Twenty-one of these rights could never be characterized as “malpractice.” They include such varied rights as religious liberties, the right to be treated with dignity, the right to smoke and consume alcohol under certain | n circumstances, and the right to go to bed and rise in accordance with reasonable requests. Whereas the NHRBR encompasses nearly two dozen rights afforded residents in all nursing homes (not just the qualified ones), the MMA only relates to “malpractice” claims against qualified nursing homes. While there are many claims that a person can assert under the NHRBR that would not fall within the definition of medical malpractice and would, therefore, not be subject to review before a medical review panel, any claim of medical malpractice against a qualified health care provider is encompassed within the ambit of the MMA and must be reviewed by a medical review panel prior to suit.

The important remaining issue is whether plaintiffs allegation that she was negligently allowed to fall from her wheelchair is a medical malpractice claim under the MMA. “In general, any conduct by a hospital complained of by a patient is properly within the scope of the [MMA] if it can reasonably be said that it comes within the definitions of the Act, even though there are alternative theories of liability.” Rogers v. Synthes, Ltd., 626 So.2d 775 (La.App. 2 Cir.1993) (action alleging defective prosthesis installed in patient, with no allegations of negligence, was a medical malpractice action subject to the provisions of the MMA). However, “[bjecause the Medical Malpractice Act limits the liability of health care providers in derogation of the general rights of tort victims, any ambiguities in the Act should be strictly construed against coverage.” Price v. City of Bossier City, 96-2408 (La.5/20/97), 693 So.2d 1169.

The MMA defines “malpractice” as:

... any unintentional tort or any breach of contract based on health care or professional services rendered or which should have been rendered by a health care provider to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers ...

La. R.S. 40:1299.41(A)(8) (emphasis added).

As stated above, it is undisputed that LECC is a nursing home covered under the definition of “qualified health care provider” under the MMA. “Tort” is defined in the MMA as “any breach of duty or any negligent act or omission causing injury or damage to another.” La. R.S. 40:1299.41(A)(7). “Patient” means “a natural person who receives or should have received health care from a licensed health care provider, under a contract express or implied.” La. R.S. 40:1299.41(A)(3). “Health care” is defined as “any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient’s medical care, treatment or confinement.” La. R.S. 40:1299.41(A)(9).

It is clear that the nursing home’s staffs alleged act of negligently allowing Ms. Deville to fall from her wheelchair involved the “handling of a patient, including loading and unloading of a patient,” which comes directly under the MMA’s definition of “malpractice.” However, as this Court stated in Price, “[wjhile clearly an act of malpractice can occur in the rendition of professional services, the patient must still be in the process of receiving ‘health care’ from the doctor or hospital when the negligent rendition of professional services occurs.” 693 So.2d at 1172. “This means that the act or omission must have occurred ‘during the patient’s medical care, treatment or confinement.’ ” Id. at 1172-73.

In the case of a nursing home, the nursing home resident is not always receiving medical care or treatment for any specific condition, but can always be said to be “confined” to the nursing home. However, in our view, it was not the intent of the legislature to have every “act, ..., by any health care provider ... during the patient’s ... confinement” in a nursing home covered by the MMA. La. R.S. 40:1299.41(A)(9) |1R(defining “health care” under the MMA). While the alleged act did involve the handling of a patient under La. R.S. 40:1299.41(A)(8), it does not necessarily constitute medical malpractice. As we have previously held in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, 315-316, to be covered under the MMA, the negligent act must be related to medical treatment. In Coleman, we set forth a six-part test to determine whether a negligent act by a health care provider is covered under the MMA:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional.

Thus, the first issue, whether plaintiffs allegations of wrongdoing are related to treatment and are caused by a dereliction of professional skill, is a key issue in this case. From the record before us, we cannot determine whether Ms. Deville was placed in the nursing home for any specific treatment of a particular condition, rather than 24-hour custodial shelter, or whether Ms. Deville was on her way to or from any medical treatment when the accident occurred. Likewise, many of the other Coleman factors cannot be decided on this record. Thus, we remand this case to the trial court for a determination of whether the allegations that Ms. Deville was negligently allowed to fall from her wheelchair constitute allegations of medical malpractice under Coleman.

CONCLUSION

La. R.S. 40:1299.47(B)(l)(a)(i) provides that “[n]o action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel ^^established pursuant to this Section.” The Legislature specifically included nursing homes such as LECC under the provisions of the MMA, .mandating that malpractice claims against the LECC proceed according to the requirements of the MMA. The Legislature’s enactment of the NHRBR was not intended to remove malpractice claims against qualified health care providers from the coverage of the MMA, but was instead intended to provide nursing home residents with important rights to preserve their dignity and personal integrity, and to provide a means by which they could enforce these rights. These rights however, do not include the right to bring a malpractice claim against the nursing home outside the confines of the MMA.

However, not all negligent acts by a nursing home will constitute medical malpractice under the MMA. To constitute a medical malpractice claim, the alleged negligent act must be related to the nursing home resident’s medical treatment at the nursing home under the requirements of Louisiana law.

DECREE

For the reasons expressed herein, the judgment of the court of appeal is affirmed in part and remanded to the trial court for a determination of whether plaintiffs allegations of negligence against the defendant are medical malpractice claims under Louisiana law.

AFFIRMED IN PART; REMANDED.

      . Suit was initially brought by Patricia Richard, euratrix of Ms. Deville. Following Ms. Deville's death in June of 2001, her siblings, Nita Prudhomme and Joseph Doucet, were substituted as representatives. All will be referred to as ''plaintiff.”

      . LECC concedes that plaintiff’s intentional tort claim is not subject to the provisions of the MMA. As the court of appeal correctly held, the MMA defines medical malpractice as “any unintentional tort or any breach of contract based on health care or professional services rendered La. R.S. 40:1299.41(A).

      . La. R.S. 40:2010.8(D)(1) provides that any violations of the residents’ rights set forth by the NHRBR shall constitute grounds for "appropriate action” by the Department of Health and Hospitals, that residents shall have a private right of action as set forth in La. R.S. 40:2010.9, and that state courts shall have jurisdiction to enjoin a violation of residents' rights and to assess fines for violations not to exceed $100 per individual violation.

      . The majority performed an analysis using the six standards for determining whether certain conduct by a qualified health care provider constitutes malpractice under the MMA, as delineated in Coleman v. Deno, infra,
        and determined that the conduct involved did not constitute malpractice.

      . In two other cases, alleging breaches of the NHRBR, the Second Circuit denied the defendants' writ applications seeking reversal of two trial court rulings denying the defendants' exceptions of prematurity. Hollier v. Guest House of Bossier, LLC, (La.App. 2 Cir. 6/13/02); Jackson v. Comm-Care, — (La.App. 2 Cir. 4/11/01), writ denied, 02-1335 (La. 9/13/02).
      The First and Second Circuits have also held that the cause of action provided by La. R.S. 40:2010.9 relating to medical treatment constitute an offense or quasi-offense, subject to the application of La. C.C. art. 2315.1 and is a heritable obligation, capable of being brought by a successor of the nursing home resident. In so doing, the First Circuit in Short v. Plantation Mgmt. Corp. affirmed an award of $650,000.00 in general damages to the survivor of a nursing home resident who alleged that the nursing home was negligent in failing to present the resident to a doctor for evaluation by a physician, in violation of the NHRBR. 99-0899 (La.App. 1 Cir. 12/27/00), 781 So.2d 46. The First Circuit held that the cause of action provided by the NHRBR is a heritable, rather than personal, obligation. Id. See also Gibson v. Monroe Manor Nursing Home, 32,806 (La.App. 2 Cir. 3/3/00), 756 So.2d 583. Neither court was presented with the precise issue here, i.e., whether such an action was subject to the provisions of the MMA. In affirming an award of $650,000.00, the First Circuit did not apply the $500,000 MMA cap on damages, but there is no indication in the opinion that the defendant nursing home was a qualified health care provider under the MMA or urged that issue as a defense. Gibson, which was before the appellate court on an exception of no cause of action, was confined strictly to the issue of heritability. Finally, the Second Circuit in Rachal v. Peters, 28,655 (La.App. 2 Cir. 9/25/96), 680 So.2d 1280, held that a claim under the NHRBR arose from a source other than La. C.C. art. 2315.1 and therefore did not have to be brought by a person according to the codal scheme of survival action beneficiaries under La. C.C. art. 2315.1.

      . It is undisputed that a nursing home is a "health care provider" under the MMA. When the MMA was enacted, the definition of "health care provider” in La. R.S. 40:1299.41(A)(1) included a "hospital,” and the definition of "hospital” included "any nursing home or home as defined in La. R.S. 40:2009.2.” In 2001, the definition of "health care provider” found in La. R.S. 40:1299.41(A)(1) was amended to specifically include "nursing home.” LECC is a "qualified” health care provider as it qualified pursuant to La. R.S. 40:1299.42 and was issued a Certificate of Enrollment by the Patients Compensation Fund.

      . See Minutes of Meeting, House Committee on Health and Welfare, June 7, 1985, House Bill 710 ("Representative Jackson asked Mr. Steve Adams of the Louisiana Nursing Home Association if they had any opposition to the bill. Mr. Adams indicated the Nursing Home Association had some amendments they would like to be considered, but they were in favor of the bill.”)


source: Caselaw Access Project

author: | JARRO, J.

license: Public Domain

text:
    Reginald BERNARD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Louisiana Board of Parole, Richard L. Stalder, Secretary, Louisiana Department of Public Safety and Corrections, and E. Peggy Landry, Chairman, Louisiana Board of Parole.
    No. 2000 CA 1912.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2001.
    James Patrick MacManus, Lafayette, for Plaintiff-Appellant Reginald Bernard.
    William Kline, Baton Rouge, for Defendants-Appellees La. Dept, of Public Safety and Corrections, et al.
    Before: CARTER, C.J., PARRO, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | JARRO, J.

Reginald Bernard, an inmate in the custody of the Louisiana Department of Pub-lie Safety and Corrections, appeals a judgment of the district court dismissing his petition for writ of habeas corpus. Finding merit in Bernard’s assignment of error that the district court erred in screening his habeas corpus application under the provisions of the Prison Litigation Reform Act (PLRA), Louisiana Revised Statutes 15:1181-90, we reverse and remand.

In his petition, Bernard claimed that, although his confinement was originally lawful, because of an intervening series of events and the application of an allegedly unconstitutional statute, the custody had become unlawful. Bernard stated that in 1989, he was convicted of the crime of distribution of a controlled dangerous substance and was sentenced to 15 years at hard labor. He was eligible for a reduction of his sentence by earning “good time” credit, and he opted to receive “double good time” at the rate of thirty days for every thirty days spent in actual custody. See LSA-R.S. 15:571.3 and 15:571.4. After serving 7-1/2 years in prison, Bernard was released “as if on parole,” and placed under parole supervision for the remainder of the original full term of his sentence, pursuant to Louisiana Revised Statute 15:571.5. Under that statute, if the released person violates a condition of parole, the parole board can revoke the release and recommit the person to custody for the remainder of the original full term of the sentence.

Bernard’s petition alleged the unconstitutionality of Louisiana Revised Statute 15:571.5, claiming that as a result of its enforcement, he was “unlawfully and unconstitutionally restrained and deprived of his liberty.” He asked the court to issue a writ of habeas corpus and order the respondents to show cause why he should not be granted relief and immediately released from further custody. The writ of habeas corpus is the appropriate procedural vehicle by which to bring such a claim before the district court. See LSA-C.Cr.P. arts. 351 and 362(2); Sinclair v. Kennedy, 96-1510 (La.App. 1st Cir.9/19/97), 701 So.2d 457, 460, writ denied, 97-2495 (La.4/3/98), 717 So.2d 645.

The district court’s judgment was rendered in accord with a recommendation by a commissioner after a “judicial screening,” a procedure authorized by Louisiana Revised Statutes 15:1178 and 1188. Under those provisions, a petition for judicial review filed under the provisions of Louisiana Revised Statute 15:1177 or a petition in a civil action in which a prisoner seeks redress from a governmental entity or its agents is reviewed by the court to determine whether it states a cognizable claim or cause of action. After this screening process, if the court determines that the petition lacks substantive merit on certain stated grounds, it may dismiss the petition. The record shows that this was the procedure used in dismissing Bernard’s petition.

However, we conclude that the “judicial screening” process by which this petition was dismissed by the district court is inappropriate for this habeas corpus claim. Louisiana Revised Statute 15:1178 applies this process to claims seeking judicial review when an inmate has gotten an adverse decision from prison authorities using the Corrections Administrative Remedy Procedure (CARP). This suit does not involve such a claim; therefore, Section 1178 is inapplicable. Louisiana Revised Statute 15:1188 applies a similar screening process to claims brought under the PLRA. The provisions of the PLRA are applicable only to claims concerning the conditions of confinement or the effects of actions by government officials on the fives of persons confined in prison; it specifically does not include habeas corpus proceedings challenging the fact or duration of confinement in prison. LSA-R.S. 15:1181(2); Frederick v. Ieyoub, 99-0616 (La.App. 1st Cir.5/12/00), 762 So.2d 144, 150, writ denied, 00-1811 (La.4/12/01), 789 So.2d 581.

Therefore, the district court erred in dismissing Bernard’s petition for habeas corpus on the basis of a “judicial screening” recommendation by the commissioner. | ¿This matter should be handled as any other civil matter, and judgment should be rendered only after the defendants have been served and issue has been joined. Therefore, this matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The office of commissioner of the Nineteenth Judicial District Court was created to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. See LSA-R.S. 13:711. The commissioner’s written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. LSA-R.S. 13:713(C)(5).

      . We note that although the procedural posture of this matter mandates our decision to remand, the commissioner's "judicial screening" recommendation thoroughly analyzed the substantive merits of Bernard’s constitutional claims and his habeas corpus claim.


author: J^WHIPPLE, J.

text:
    Danny D. BEZET v. The ORIGINAL LIBRARY JOE’S, INC., Leeway Corp., d/b/a “Slinky’s,” Spanish Moon, Inc. d/b/a “the Bayou,” Highland Coffees, Barco Enterprises, Inc. d/b/a “the Chimes,” River City Entertainment, Inc. d/b/a Varsity Theatre, Louie’s Café, Inc., Tiger Town Associates, L.L.C., A, B, C, D, E, F, G, H as Unknown Liability Insurers of Defendants and Jason Christopher Lavigne Todd Moonshower v. The Original Library Joe’s, Inc., Leeway Corp., d/b/a “Slinky’s,” Spanish Moon, Inc. d/b/a “the Bayou,” Highland Coffees, Barco Enterprises, Inc. d/b/a “the Chimes,” River City Entertainment, Inc. d/b/a “Varsity Theatre,” Louie’s Café, Inc., Tiger Town Associates, L.L.C., Four by Two Development, Inc., St. Paul Reinsurance, State Farm Insurance, Scottsdale Insurance, A, B, C, D, E as Unknown Liability Insurers of Defendants and Jason Christopher Lavigne
    No. 2001CA1586, 2001CA1587.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2002.

      Joseph Hecker, Karen LaCount, Baton Rouge, Chris Richard, Lafayette, for PlaintifRAppellant, Danny D. Bezet.
    A. Gregory Rome, Baton Rouge, Kent Mercier, Chris Richard, Lafayette, for PlaintifRAppellant, Todd Moonshower.
    Simon Dupre, S. Brian Perry, Lafayette, for Defendants, Spanish Moon, Inc. d/b/a The Bayou and David N. Crawford.
    Stephen Emling, New Orleans, James Kokemor, Metairie, for Defendant, Scottsdale Insurance Company.
    Carey Guglielmo, Baton Rouge, for Defendant, Louie’s Café.
    Frances Bo Rougeou, Baton Rouge, for Defendant, Jason Christopher Lavigne.
    Diana L. Tonagel, Mandeville, for Defendant, St. Paul Reinsurance Company.
    David J. Halpern, Zara Zerinque, Me-tairie, Maryann Graham Hoskins, Jefferson, for Defendants, R. Keever Realty, Inc. and Regina Keever.
    Dominic Ovella, Laurence Larmann, Me-tairie, for Defendant/Appellee, Tiger Town Associates, L.L.C.
    Robert Barton, A. Michael Dufilho, Baton Rouge, for Defendant/Appellee, Four by Two Development, Inc.
    Amos Davis, Baton Rouge, for Defendant, Cadex, Inc. d/b/a Highland Coffees.
    Keith P. Richards, Baton Rouge, for Defendants, F.W.D., Inc. and Frank W. Du-vic.
    James L. Trinchard, New Orleans, for Defendant, Peter LoSavio, Jr.
    Before: WHIPPLE, FOGG and GUIDRY, JJ.
   J^WHIPPLE, J.

Plaintiffs, Danny D. Bezet and Todd Moonshower, appeal from the judgment of the trial court, granting the motions for summary judgment filed by Four by Two Development, Inc. (“Four by Two Development”) and Tiger Town Associates, L.L.C. (“Tiger Town Associates”), and dismissing plaintiffs’ claims against these defendants with prejudice. For the following reasons, we stay the appeal and remand to the district court with instructions for completion of the record.

FACTS AND PROCEDURAL HISTORY

The suit arises from an action for damages for injuries received by plaintiffs, Danny Bezet and Todd Moonshower, when they were attacked and stabbed in an alleyway and parking lot area located in the proximity of several businesses in Baton Rouge. The facts giving rise to this suit were set forth in this court’s prior opinion in Bezet v. Original Library Joe’s, Inc., 98-1467, 98-1468, pp. 5-6 (La.App. 1st Cir.6/25/99), 747 So.2d 77, 80-81, writ denied, 99-2836 (La.12/17/99), 751 So.2d 879.

In addition to naming as defendants their attacker, Jason Lavigne, and several, but not all, of the businesses operating in the vicinity of the parking lot, plaintiffs also named Four by Two Development and Tiger Town Associates, as the owners of the alleyway and parking lot area in which the attack occurred.

Along with several of the businesses named as defendants, Four by Two Development and Tiger Town Associates filed motions for summary judgment, contending that they owed no duty to plaintiffs to prevent the attack upon them by third parties. In response, plaintiffs filed a memorandum- and exhibits, challenging | ¡^defendants’ claim that under the facts presented, they were entitled to judgment in their favor as a matter of law. In denying the motions for summary judgment filed by Four by Two Development and Tiger Town Associates, the trial court stated that “there is at least one genuine issue of material fact, which is whether these owners could have ‘foreseen’ that this private parking area and/or alleyway was unreasonably] dangerous.” Tiger Town Associates and Four by Two Development applied to this court for writs of certiorari and review, challenging the trial courts’ denial of their motions for summary judgment. In response, plaintiffs filed an opposition relying upon their countervailing evidence and contending defendants were not entitled to summary judgment herein. The defendants’ writ applications were denied. Bezet v. The Original Library Joe’s, 98 CW 1264, 98 CW 1279 (La.App. 1st Cir.10/22/98).

Subsequently, after the Supreme Court rendered its decision in Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762, Four by Two Development and Tiger Town Associates re-urged their motions for summary judgment, contending that under the legal precepts enunciated in Posecai, they owed no duty to plaintiffs under the facts presented herein. Following a hearing on the motions, the trial court rendered judgment granting the motions for summary judgment and dismissing with prejudice plaintiffs’ claims against Four by Two Development and Tiger Town Associates. From this judgment, plaintiffs appeal.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial, where there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. It should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the | ^affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

On appeal, plaintiffs aver that the trial court erred in granting the motions for summary judgment filed by Four by Two Development and Tiger Town Associates, where the evidence presented in opposition to the motions demonstrated that these property owners should have known of the long-standing pattern of criminal conduct on the premises where plaintiffs were attacked. Specifically, in their brief to this court, plaintiffs state that they opposed the motions for summary judgment by relying upon “the evidence submitted in the original motion for summary judgment.” Plaintiffs then argue in their brief herein that the evidence contained in various affidavits or depositions submitted in opposition to the motions below, and the prior writ applications filed with this court, preclude summary judgment herein. Pre-termitting the propriety of plaintiffs’ attempt herein to “incorporate by reference” the exhibits filed with their opposition to writs some four years ago, we note that none of the evidence discussed by plaintiffs is contained in the record presented on appeal.

Our review of the record on appeal clearly reveals that the entire record in this matter was not compiled in these proceedings and forwarded to this court for review. Pursuant to LSA-C.C.P. art. 2127, the clerk of the trial court is charged with the'duty of preparing the record on appeal, subject to the right of an appellant to designate those portions of the record that he desires to constitute the record on appeal. LSA-C.C.P. art. 2128; see also Uniform Rules, Courts of Appeal, Rule 2-1.17. However, in the absence of such a designation, “the record shall be a 17transcript of all proceedings as well as all documents filed in the trial court.” LSA-C.C.P. art. 2128 (emphasis added); see also Uniform Rules, Courts of Appeal, Rules 2-1 through 2-1.16.

In the instant case, there is no designation in the record indicating that plaintiffs wished this court to consider only portions of the entire record in this matter in relation to this appeal. Accordingly, the clerk of the trial court lacked the authority to lodge an incomplete record in this matter. See Simon v. Fasig-Tipton Company of New York, 574 So.2d 554, 557 (La.App. 3rd Cir.), writ denied, 580 So.2d 381 (La.), cert. denied, 502 U.S. 983, 112 S.Ct. 588, 116 L.Ed.2d 613.(1991).

However, in the interests of justice and because the failure to compile the complete record herein is attributable to the clerk of the trial court, we hereby grant appellants three days from the date of mailing of the notice of this judgment, exclusive of holidays, to designate in a writing filed with the trial court such portions of the record they desire to constitute the record on appeal, should they so desire. See LSA-C.C.P. art. 2128. In the event that plaintiffs elect to file such a designation with the trial court, within five days, exclusive of holidays, after service of a copy of any such designation on the other parties, those parties may also designate in a writing filed with the trial court any other portions of the record they consider necessary. See LSA-C.C.P. art. 2128.

In the event the parties timely file a designation or designations with the trial court, the clerk of court of the trial court is directed to compile the record as so designated by the parties within fourteen days of the expiration of the time delays granted herein to the parties to file such designations.

In the event that appellants do not timely designate in a writing filed with the trial court such portions of the record they desire to constitute the record on appeal, the clerk of the trial court is ordered to compile a complete record of the IsProceedings below at appellants’ costs and to lodge the complete record within twenty-one days of the date of mailing of the notice of this judgment.

CONCLUSION

For the above and foregoing reasons, the appeal is stayed and this matter is remanded to the trial court with the following instructions.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that appellants are granted three days from the date of mailing of the notice of this judgment, exclusive of holidays, to designate in a writing filed with the trial court such portions of the record they desire to constitute the record on appeal, should they so desire.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event that appellants file such a designation with the trial court, the remaining parties to this matter, within five days exclusive of holidays after service of a copy of any such designation by appellants, may also designate in a writing filed with the trial court other portions of the record they consider necessary.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, in the event the parties timely file a designation or designations with the trial court, the clerk of court of the trial court shall compile the record as designated by the parties within fourteen days of the expiration of the time delays granted herein to the parties to file such designations.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, in the event that appellants do not timely designate in a writing filed with the trial court such portions of the record they desire to constitute the record on appeal, the clerk of the trial court shall compile a complete record of the proceedings below at appellants’ costs and shall lodge the complete record with this court -within twenty-one days of the date of mailing of the notice of this judgment.

APPEAL STAYED; REMANDED WITH ORDER.

      . The Losavio Trust was also named as a defendant, as the alleged owner of part of the alleyway where the attacks occurred,

      . Moreover, we note that while Tiger Town Associates points out in brief that the evidence relied upon by plaintiffs in opposition to its motion for summary judgment is not a part of the appellate record, Tiger Town Associates also makes various assertions about its ownership interests and lease arrangements with its tenants which, likewise, are not borne out by the incomplete record now before us on appeal.


author: 1 .WHIPPLE, J.

text:
    STATE of Louisiana in the Interest OF Joni STOCKTON v. Kenny LAFFERTY.
    No. 2001CA2110.
    Court of Appeal of Louisiana, First Circuit.
    July 24, 2002.

      Michael W. Lee, Livingston, Counsel for Plaintiff/Appellee, State of Louisiana in the Interest of Joni Stockton.
    Vince Dunn, Jr., Baton Rouge, Counsel for DefendanVAppellant, Kenny Lafferty.
    Before: WHIPPLE, FOGG, and CIACCIO JJ.

      . The Honorable Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   1 .WHIPPLE, J.

This matter is before us on appeal by appellant, Kenny Lafferty, from a judgment denying his request for reduction of child support and maintaining his monthly child support obligation at $477.00. We affirm.

FACTS AND PROCEDURAL HISTORY

Lafferty is the natural father of the minor child, Caden Stockton, who has received support and assistance through payments by the State of Louisiana. In addition to this child, Lafferty has four other children, residing in three different homes. His oldest two children reside with their mother, Lafferty’s former wife. His middle and youngest children live with him and their mother, Lafferty’s fiancée. However, the support enforcement proceedings at issue herein only concern the support of Caden Stockton, his second-youngest child, who resides with his mother, Joni Stockton.

After the commencement of child support enforcement proceedings herein by the State, Lafferty signed a consent judgment on June 3, 1999, agreeing to pay $263.00 monthly as support for Caden. On December 9, 1999, Lafferty signed a second consent judgment, agreeing to pay $477.00 per month in child support.

On February 24, 2000, Lafferty filed a Rule to Decrease Child Support. An evi-dentiary hearing was conducted by a hearing officer on May 22, 2000. At the conclusion of the hearing, the hearing officer recommended that the trial court reject Lafferty’s request for reduction and maintain the existing support obligation, and that Lafferty be held in contempt for his willful failure to make timely payments. Specifically, the hearing officer noted that Lafferty had failed to prove that he was obligated to or making support payments to his former wife for his Roldest two children; that Lafferty was voluntarily underemployed; that Lafferty was capable of earning $1,733.33 each month; and that Lafferty was fully capable of supporting himself and his three youngest children based on earnings of $1,733.33 each month.

By judgment rendered April 5, 2001 and signed April 30, 2001, the trial court agreed with the hearing officer’s recommendation and ordered that the monthly child support obligation remain at $477.00. Lafferty appeals, asserting the following assignments of error:

1. The trial court erred in excluding from the child support worksheet and judgment his legal obligation to support the two minor children residing with him.

- 2. The trial court erred in excluding from the child support worksheet and judgment his legal obligation to support the two minor children residing with his former wife.

DISCUSSION

Deviation for Domiciliary Children

Lafferty first contends that the trial court committed manifest and reversible error by improperly excluding from the child support worksheet and resulting judgment his “legal obligation” to support the two minor children residing with him. He contends that deviation from the guidelines was mandated under LSA-R.S. 9:315.1(0(2), which provides, “In determining whether to deviate from the guidelines, the court’s consideration may include: ... [t]he legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household.” On review, we find no error.

At the outset, we note that deviation from the statutorily-established support guidelines, including deviation based on a party’s legal obligation to support other | household dependents, is a matter within the court’s discretion and is optional, rather than mandatory. See LSA-R.S. 9:315.1(B) and (C)(2); LSA-R.S. 1:3.

As set forth in LSA-R.S. 9:315.1(A), “[tjhere shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines... is the proper amount of child support.” Moreover, “[i]f a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential.” LSA-R.S. 9:315.9. Here, the trial court concluded that Lafferty was voluntarily underemployed and that he was capable of earning $1,733.33 per month. The trial court further concluded that he was capable of satisfying his support obligation for Caden and his three youngest children on that amount. In so ruling, the trial court obviously rejected his explanation for the alleged decrease in earnings and concluded that, based on the past earnings records and work history established by the State, he could continue to earn this amount. Considering the record in its entirety, we find no error by the trial court in its conclusion that no reduction was warranted on this basis.

At trial, the State established that Laf-ferty had been employed as a machinist making at least $10.00 per hour, based on a forty-hour work week for several years prior to trial. Although Lafferty contended that he was only earning an average of $548.00 per month in a crank-shaft business with his brother, he did not introduce any financial records, tax returns, other documentation or testimony to support this claim. Also, during cross-examination, Lafferty acknowledged that he was claiming expenses in excess of $1,600.00 per month, which he contended were being paid with funds received from other family members. Thus, we find no error in the trial court’s assessment of Lafferty’s income based on the figures from his employment records with Womack’s Head and Body Shop introduced by the State.

lBOn review, we find the trial court properly abided by the Child Support Guidelines and correctly rejected Lafferty’s request for a reduction, even considering any obligation of Lafferty to support the two minor children residing with him. Inasmuch as the record supports the finding that Lafferty was voluntarily unemployed and, further, that he was capable of fully supporting his three youngest children on the $1,733.33 per month figure, the trial ruling was not manifestly erroneous. Thus, this assignment of error lacks merit.

Deviation for Nondomiciliary Children

Lafferty next contends that the trial court erred in excluding from consideration his “legal obligation” to support his two minor children residing with his former wife. Citing LSA-R.S. 9:315.1(D), which provides “[t]he court may review and approve a stipulation between the parties entered into after the effective date of this Part as to the amount of child support to be paid,” he contends the trial court erred in refusing to reduce his support obligation to Caden.

As Lafferty correctly notes, a trial court is empowered to consider preexisting child support obligations in setting support for a subsequent child. As set forth in LSA-R.S. 9:315(0(1), “ ‘[ajdjusted gross income’ means gross income, minus amounts for preexisting child support ... on behalf of a child who is not the subject of the action of the court.” Herein, the trial court found that Lafferty had failed to show that he was actually supporting his two oldest children by paying his former wife $400.00 per month. On review, we are unable to say the trial court was manifestly erroneous in this finding.

The divorce decree between Lafferty and his former wife is silent with regard to any minor children born of the marriage or any child support obligations. According to Lafferty, he and his former wife agreed to “handle” child support payments and visitation extra-judicially. At the hearing, he testified that he was | fipaying his former wife $200.00 each month per child in addition to funding lunches and extra-curricular activities. However, Lafferty’s former wife did not attend the hearing nor did he present any documentary evidence to support these claimed payments and expenses. Lafferty’s testimony is the only evidence entered into the record concerning the amount of child support paid for the support of these children.

A finding of fact by a trial court shall not be set aside absent manifest error. Theriot v. Lasseigne, 93-2661, p. 5 (La.7/5/94), 640 So.2d 1305, 1310. Moreover, “[credibility determinations are subject to the strictest deference and the manifest error-clearly wrong standard demands great deference for the trier of fact’s findings.” Theriot, 93-2661 at p. 9, 640 So.2d at 1313, citing Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989). “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong but whether the factfinder’s conclusion was a reasonable one.” Theriot, 93-2661 at p. 9, 640 So.2d at 1313, citing Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

Again, the record shows that there was no formal or written agreement between Lafferty and his former wife concerning child support. Moreover, Lafferty failed to introduce receipts or check stubs showing any regular child support payments to his former wife. Additionally, Lafferty contended that he was only receiving an average income of $548.00 per month. Under these circumstances and considering the record in its entirety, we find no error in the trial court’s decision to reject Lafferty’s testimony or its conclusion that no reduction of the support obligation was warranted on the basis of alleged payments for the support of his oldest two children. Accordingly, these arguments likewise lack merit.

^CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against appellant, Kenny Lafferty.

AFFIRMED.

      . Although not at issue herein, the record shows Lafferty has been adjudicated in contempt of court multiple times for non-payment of child support owed to Stockton.


author: | .CARTER, C.J.

text:
    Clarence CHAPMAN v. JD’S TRUCKING COMPANY, INC.
    No. 2001 CA 1568.
    Court of Appeal of Louisiana, First Circuit.
    July 24, 2002.

      Carolyn Sartin, Baton Rouge, for Plaintiff/Appellee, Clarence Chapman.
    Joseph Stockwell, III, Baton Rouge, for Defendant/Appellant, JD’s Trucking Company, Inc.
    Before: CARTER, C.J., PARRO, and CLAIBORNE, JJ.

      . Hon. Ian W. Claiborne, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .CARTER, C.J.

In this workers’ compensation case, defendant/appellant, JD’s Trucking Company, Inc., appeals a judgment rendered by the Office of Workers’ Compensation Administration (the OWC), awarding benefits to its employee despite a finding that the employee had violated LSA-R.S. 23:1208.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff/appellee, Clarence Chapman, filed a disputed claim for compensation with the OWC, alleging that he suffered injuries in an eighteen wheeler collision. At trial, Chapman testified that on October 15, 1998, he was in the process of hauling a load from either North or South Carolina to Louisiana. Chapman pulled off the highway in Clinton, Mississippi. As Chapman merged back on to the highway, the eighteen wheeler he was driving was struck from behind by another eighteen wheeler.

On the disputed claim form, Chapman listed his employer as JD’s Trucking and Jack Clifton Trucking. At trial, a primary issue was the identity of Chapman’s employer. Other issues included whether Chapman had an accident or suffered injury within the course and scope of his employment, the nature and extent of his disability, and the applicability of LSA-R.S. 23:1208.

The workers’ compensation judge (WCJ) determined that JD’s Trucking was Chapman’s direct employer and that Chapman was injured in the course and scope of his employment on October 15, 1998. The WCJ found that Chapman’s weekly wage was $362.36 and awarded supplemental earnings benefits (SEBs) at the rate of $241.57 per week for six weeks plus interest. Chapman’s indemnity benefits were increased by 50% due to the failure of JD’s Trucking to provide workers’ compensation insurance coverage. The WCJ awarded medical expenses in the amount of $750 to each of three medical providers, but denied any other demands for payment by those [.-¡providers. Chapman was awarded out-of-pocket prescription expenses in the amount of $107.81 plus interest. Claims for penalties or attorneys’ fees by Chapman and JD’s Trucking were denied. The WCJ found that Chapman and JD’s Trucking each violated LSA-R.S. 23:1208, thereby extinguishing any claims against each other. Finally, the WCJ found that the accident aggravated a pre-existing medical condition and ordered Chapman to submit to an independent medical examination at the expense of JD’s Trucking.

From this adverse judgment, JD’s Trucking appealed.

FORFEITURE OF BENEFITS UNDER LSA-R.S. 23:1208

In this case, the WCJ determined that Chapman violated LSA-R.S. 23:1208 in that he deliberately made false representations for the purpose of obtaining workers’ compensation benefits. Nonetheless, the WCJ did not enforce the forfeiture provision of this section. JD’s Trucking contends the WCJ erred in awarding SEBs and medical expenses because Chapman fulfilled the elements for forfeiture of benefits under Section 1208.

With regard to forfeiture of benefits, Section 1208E provides, in pertinent part:

Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

(Emphasis added). When used in a statute, the word “shall” is mandatory. LSA-R.S. 1:3.

In Resweber v. Haroil Construction Company, 94-2708 (La.9/15/95), 660 So.2d 7, the supreme court analyzed the legislative history of Section 1208 and stated:

The history of Section 1208 indicates a clear legislative intent to prevent and discourage fraud in relation to workers’ compensation claims, and Section 1208 should not be subjected to a strained interpretation which would undercut that legislative intent.... The legislature has determined workers’ compensation fraud is a severe and growing problem and has continually amended Section 1208 to make it easier to enforce and to |4make the penalties stiffer. It is clear from the history of the statute that the legislature intended that any false statements or representations willfully made for the purpose of obtaining benefits would result in forfeiture of those benefits, and this legislative intent cannot be ignored.

660 So.2d at 12-13 (emphasis added).

The only requirements for disqualification under Section 1208 are: 1) a false statement or representation, 2) which is willfully made, and 3) which is made for the purpose of obtaining workers’ compensation benefits. If these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced. Resweber, 660 So.2d at 14.

Statutory forfeiture of workers’ compensation benefits is a harsh remedy and as such must be strictly construed.. J.E. Merit Constructors, Inc. v. Smith, 2000-2324, p. 7 (La.App. 1st Cir.12/28/01), 806 So.2d 842, 846. The WCJ found that the requirements for disqualification under Section 1208 were met. Thus, it was legal error for the WCJ not to enforce the mandatory forfeiture provision of Section 1208E. We are therefore constrained to reverse the OWC’s judgment insofar as it awards Chapman workers’ compensation benefits. We pretermit discussion of the remaining issues raised by JD’s Trucking, including those raised in its supplemental brief.

CONCLUSION

For the reasons set forth herein, the judgment of the OWC is reversed insofar as it awards Chapman workers’ compensation benefits, including SEBs, indemnity benefits, medical expenses, and out-of-pocket prescription expenses, and orders Chapman to submit to an independent medical examination. Costs of this appeal are assessed to Clarence Chapman.

REVERSED.

      . JD's Trucking, as third party plaintiff, confirmed a default judgment against Jack Clifton Trucking Company, ordering that in the event that there be judgment in favor of Chapman and against JD’s Trucking, then there be like judgment over and against Jack Clifton Trucking Company and for full defense with respect to any judgment in favor of Chapman, and against JD's Trucking, including attorneys' fees, interest and costs, and for all general and equitable relief.

      . In his appeal brief, Chapman raises the issue of his entitlement to an award of attorneys' fees and penalties due to JD's Trucking’s arbitraiy and capricious failure to pay him workers' compensation and medical benefits. Because Chapman neither appealed nor answered the appeal, we are precluded from entertaining this issue. See LSA-C.C.P. arts.2082 and 2133; see also Walker v. Clarendon National Insurance Co., 2001-2338, p. 2 (La.12/14/01), 802 So.2d 1285, 1286.

      . The issue of whether JD’s Trucking willfully made false statements for the purpose of defeating Chapman's workers' compensation claim as found by the WCJ must be determined in conjunction with the penalty provision of Section 1208D. Since Chapman has neither appealed nor answered the appeal, we are prohibited for modifying the judgment in his favor. See LSA-C.C.P. arts.2082 and 2133; TeleRecovery of Louisiana, Inc. v. Rayborn, 2001-0358, p. 7 (La.App. 1st Cir.3/28/02), 814 So.2d 688, 693. Accordingly, we find it unnecessary to determine if the WCJ erred in its finding in this regard.