author: |, PATRICIA RIVET MURRAY, Judge.

text:
    Harvey STERN v. NEW ORLEANS CITY PLANNING COMMISSION.
    No. 2003-CA-0817.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      Thomas W. Milliner, New Orleans, LA, Counsel for Plaintiff/Appellant.
    Sherry Landry, Acting City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Joseph V. DiRosa, Jr., Deputy City Attorney, New Orleans, LA, Counsel for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   |, PATRICIA RIVET MURRAY, Judge.

This is an appeal from a decision by the Civil Service Commission of the City of New Orleans (the “Commission”) dismissing the appeal of Harvey Stern, a permanent classified civil service employee. The Commission’s reasoning was that Mr. Stern’s voluntary resignation was accepted and final before he attempted to rescind it. For that reason, the Commission held that he lacked a right of appeal. We agree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

From February 1981 to October 2001, Mr. Stern was employed as a civil service employee with the City of New Orleans. In June 1995, he was promoted to his current position as principal analyst in the Strategic Planning Division of the City Planning Commission (“CPC”). In 2001, he applied for a promotion to the position as principal planner. On October 2, 2001, he returned from a three-week, scheduled vacation. On that date, he learned that the principal planner position had been filled and that he had been transferred from his position in the CPC’s Strategic Planning Division to a position in its Land Use Division. His files in Strategic Planning were reassigned, and he was assigned one file in the Land Use Division.

|¡>On October 3, 2001, Mr. Stern submitted a letter of resignation to Collette Crep-pell, the CPC’s Executive Director, which read: “I am resigning effective 5PM Thursday October 18, 2001.” Shortly thereafter, he mentioned to another department employee that he was considering withdrawing his tender of resignation. In a letter to Ms. Creppell dated Friday, October 12, 2001, he expressed his intent to rescind his resignation, stating: “I am writing to rescind my October 3rd letter of resignation that was to have been effective October 18th, and am asking that all paperwork relative to my termination be halted.” He further stated in the letter that his resignation was prompted by his disappointment over not being appointed principal planner, as well as by “the arbitrary and unfair process though which this appointment was filled.” Finally, he ended the letter with a request for a one-year unpaid leave of absence.

According to Ms. Creppel, she did not receive the letter until Monday, October 15, 2001. On that same date, she responded in writing, informing Mr. Stern that she had just received his letter dated October 12, 2001 and that his earlier resignation had “already been received and accepted.” On the next day, October 16, 2001, Ms. Creppell initiated Mr. Stern’s separation paperwork by completing two forms: an “EXIT INTERVIEW — TERMINATION OF EMPLOYMENT”, listing the reason for Mr. Stern’s termination of employment as “RESIGNATION NO REASON KNOWN”; and a “SEPARATION NOTICE ALLEGING DISQUALIFICATION”, listing the reason for leaving as “Voluntary Leaving (Quit).” Neither of these forms were ever signed by Mr. Stern.

On October 16, 2001, Mr. Stern wrote another letter to Ms. Creppell. Expressing his belief that Ms. Creppell was incorrect in suggesting he had no choice but to resign, he articulated the following reasons in support of his position:

| My letter rescinding my resignation was submitted prior to the intended resignation date of 5PM, October 18, 2001.
• At no time prior to the letter of rescission did I receive notice by either you or by the Commission that my resignation had been accepted.
• On the morning of October 15th, I was told by your secretary that no paperwork had commenced relating to this matter.
• Substantiating this is my verification with the Finance Department that they received no documents related to this matter, and that therefore as of today I am an employee in good standing.

On October 17, 2001, Ms. Creppell responded by letter, stating that “[y]ou requested and received acceptance of your resignation from the office.”

On October 18, 2001, Mr. Stern responded by writing another letter, stating:

Resigning or not resigning is my call as a permanent civil service employee.
* * *
Yet in the face of my stated desire to maintain employment, you “after the fact” filled out exit forms to process a resignation. The “Separation Notice” (signed by you on October 16) wrongly stated that I was voluntarily resigning .... [The forms] have not been submitted since I did not sign them. Because of this, I have now learned that it is your intention to directly authorize the city Payroll Section to process my termination without these forms.
* * *
I consider these actions highly improper, and in effect an attempted “forced resignation.”

On October 19, 2001, Mr. Stern reported for work and was told by Ms. Creppell that he could not remain in the office and that he would be forcibly removed if he did not leave. On October 22, 2001, Mr. Stern again reported for woi"k, but was barred from entry at the sign in desk by City Hall personnel. At that time, his identification card was confiscated, and he was denied a visitor’s pass.

On October 19, 2001, Mr. Stern requested that the Civil Service Department take no action on any personnel forms originating from the CPC that would 14remove him either from his position as a civil service employee or from the payroll. He explained that Ms. Creppell was attempting to impose a “forced resignation” on him. On November 12, 2001, Mr. Stern requested an appeal to the Commission of his “forced resignation.”

Mr. Stern filed an appeal to the Commission on January 16, 2002, regarding his dismissal and regarding the “[flailure to ratify dismissal/force resignation within sixty days as required by Section 4-108 of the Home Rule Charter, City of New Orleans.” On January 15, 2002, at its semimonthly meeting, the CPC had declined to ratify the actions of Ms. Creppell regarding the resignation of Mr. Stern, as required by the City’s Home Rule Charter relative to all personnel decisions by the CPC’s executive director. The Commission assigned the matter to a hearing examiner, who held a hearing on May 30, 2002. At that hearing, the CPC argued that Ms. Creppell acknowledged and accepted Mr. Stern’s resignation by conduct. Mr. Stern countered that the CPC was compelled to rescind his resignation upon his request because the CPC had not acknowledged or accepted his resignation in writing, and he rescinded his resignation prior to its effective date.

On July 24, 2002, the Commission rendered it decision, denying Mr. Stern’s appeal. The Commission found that because Mr. Stern’s voluntary resignation was accepted and final before he attempted to rescind it, he lacked a right of appeal. The Commission reasoned that the appointing authority acknowledged Mr. Stern’s decision to resign by conduct. Ms. Creppell ordered the staff to gather the files for which Mr. Stern had been responsible, and Mr. Stern’s new supervisor in the Land |RUse Division refrained from assigning him new files upon his transfer into that division. The Commission noted that Ms. Creppell acknowledged she had the authority to accept Mr. Stern’s revocation of his resignation and that she also had the authority to disallow Mr. Stern’s request for a one-year leave of absence and order him back to work. She rejected both options. The Commission concluded that:

The Appellant [Mr. Stern] contends that the resignation was not accepted prior to his attempted revocation. He contends that the acceptance must be in writing and approved by the City Planning Commission before it becomes final. Our rules do not anticipate this situation. We have no requirement that voluntary resignations must be acknowledged in writing. In the instant case, the Appointing Authority accepted the Appellant’s resignation by conduct. Once she received the Appellant’s resignation, she informed her subordinates to take the appropriate action. The appellant cooperated in the transition, until he had a change of heart.
We conclude that the Appellant’s voluntary resignation was accepted and final prior to his attempted revocation. As such, he has no right of appeal.

One of the three Commission members dissenting, expressing the opinion that since generally personnel matters are not handled expeditiously, it was “harsh treatment” for the appointing authority to take advantage of Mr. Stern’s initial decision and to fail to recognize his prompt change of heart regarding resigning. From that decision, Mr. Stern appeals.

STANDARD OF REVIEW

In Banks v. New Orleans Police Dept., 2001-0859, p. 3 (La. 4 Cir. 9/25/02), 829 So.2d 511, 513-14, writ denied, 2002-2620 (La.12/13/02), 831 So.2d 990, this court articulated the standard of review in civil service cases. First, we noted |fithat the review by appellate courts of the findings of fact in a civil service case is governed by the manifest error or clearly erroneous standard. Second, we noted that when the Commission’s decisions involve jurisdiction, procedure, and interpretation of laws and regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, we noted that on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. Third, we noted that a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. Finally, we noted that a legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial.

DISCUSSION

The issue presented in this appeal is whether the Commission correctly concluded that Mr. Stern’s resignation was voluntary and that he therefore lacked a right to appeal. In Banks, we noted that “the question of whether an employee has the right to appeal is analogous to the question of whether a plaintiff has a cause of action.” Banks, 2001-0859 at p. 3, 829 So.2d at 514. An employee has no right to appeal when the employee voluntary resigns. Palmisano v. Department of Fleet Management, Parish of Jefferson, 97-745, p. 5 (La.App. 5 Cir. 12/10/97), 704 So.2d 862, 864. However, an employee has a right to appeal when the employee is forced to resign or involuntarily resigns. The reason an appeal lies in the latter context is to preclude the characterization of disciplinary action as a “resignation” to subvert an employee’s right to appeal provided for by La. Const. Art 10, § 8. Peterson v. Department of Streets, 369 So.2d 235, 237 (La.App. 4th Cir.1979).

|7In this ease, Mr. Stern’s right to appeal is contingent upon whether his resignation was voluntary, as the CPC contends and the Commission found, or involuntary (forced), as he contends. The Commission’s rules do not address the particular facts of the instant ease; its rules do not address the procedure to be followed when a classified employee tenders his prospective resignation and attempts to withdraw the same prior to the effective date. Given the silence of the Commission’s rules on the manner of acceptance of a voluntary resignation, the CPC suggests that we look to the Civil Code articles on offer and acceptance. Particularly, it cites La. C.C. art.1927, which provides:

A contract is formed by the consent of the parties established through offer and acceptance.
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
IsUnless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.

Applying that rule, the CPC contends that the Commission correctly concluded it accepted Mr. Stern’s voluntary resignation by its actions before his attempted revocation. Particularly, the CPC cites the fact that following Mr. Stern’s tender of resignation, Ms. Creppell notified at least two of the CPC members of his resignation. It also cites her testimony that she handled his resignation in the same manner that she had handled other recent resignations. The CPC also stresses the fact that Mr. Stern participated in the preparations that were commenced by the CPC for his resignation; he met with his prior supervisor as well as his new supervisor in the Land Use Division. It follows, the CPC stresses, that he was aware of the fact that the CPC had accepted his resignation. Given these facts, the CPC argues that the Commission did not act arbitrarily or capriciously and did not commit manifest error in concluding that Mr. Stern’s resignation was accepted before he attempted to revoke it.

Conversely, citing Day v. Department of Institutions, 231 La. 775, 93 So.2d 1 (1956), Mr. Stern contends that the CPC was required to accept his resignation in writing. In further support for his position, he cites cases from other jurisdictions for the proposition that a public employee may revoke a tender of resignation before its effective date provided there has been no formal acceptance or acts in reliance upon such resignation by the public employer. Particularly, he quotes the | flfollowing language from Davis v. Marion County Engineer, 60 Ohio St.3d 53, 573 N.E.2d 51, 53-54 (1991): “[acceptance of a resignation should be in writing and should encompass some type of affirmative act that clearly indicates that the tender of resignation is accepted by someone empowered by the public employee to do so.” Id. Based on these principles, he emphasizes the fact that the CPC failed to provide him with a written acceptance of his resignation until after he withdrew it.

Mr. Stern further contends that the CPC did not act in reliance on his resignation before he attempted to withdraw it. He stresses that the CPC had not hired anyone to fill his position; indeed, it had not begun the process for hiring a replacement. He also stresses that he had been transferred to another division the day before he tendered his resignation and that all his files were reassigned to coworkers for that reason, not because of his resignation. He also notes that he had not yet taken up a caseload in the division to which he had been transferred. Given these facts, he submits that the CPC took no steps in reliance on his tender of resignation before he rescinded it.

Because the CPC neither formally accepted his resignation in writing nor took any steps in reliance on his tender of resignation, Mr. Stern contends that he had the right to rescind it. Continuing, he contends that the refusal of the CPC’s executive director, Ms. Creppell, to allow him to rescind it was improper and tantamount to disciplinary action. Thus, he claims this is an involuntary or forced resignation case, and the Commission erred in finding he did not have a right of appeal.

|inThe Commission correctly concluded that a formal acceptance in writing was not necessary. Although the Louisiana Supreme Court in Day held under the facts before it that a written acceptance was required, Day is distinguishable in that it involved an oral resignation whereas Mr. Stern’s resignation was in writing. See Pugh v. Department of Culture, Recreation, and Tourism, Sabine River Authority, 597 So.2d 38, 41, n. 2 (La.App. 1 Cir.1992)(distinguishing Day on that basis and noting the lack of a notice issue when the employee resigns in writing). The fact the CPC failed to accept in writing was thus not controlling.

The Commission also concluded that Ms. Creppell’s conduct constituted an acceptance of Stern’s tender before he attempted to revoke it. As discussed above, the CPC argues this finding was not manifestly erroneous. We interpret Mr. Stern’s counterargument to be that Ms. Creppell’s conduct was insufficient to amount to an acceptance. The question of what conduct constitutes an acceptance clearly turns on the particular facts of the particular case. Given the factual nature of this determination, we find it is governed by the manifest error standard.

In this particular case, the Commission found that the CPC’s conduct was sufficient to constitute an acceptance, stating the following reasons:

Although not formally accepting in writing, the Appointing Authority acknowledged the Appellant’s decision to resign by conduct. Dubravka Gilic is a planning administrator in charge of the Comprehensive Planning Section. She testified that Ms. Creppell | ^informed her of the Appellant’s resignation. As a consequence, she was directed to meet with the Appellant to locate and gather those files and documents for which he had responsibility. She testified that she met with the Appellant on several occasions, and that he was cooperative. She also testified that at a certain point in time the Appellant informed her that he was having second thoughts about resigning. Mindy Parnés is a planning administrator. She also supervised the Appellant for a brief period. She testified that after his transfer to her section he was assigned a zoning case. However, because he was leaving, she reassigned the project to someone else. Ms. Creppell testified that she accepted the resignation and began making plans

Although we find the CPC’s actions taken in reliance on the resignation to be minimal, we cannot say that the Commission was manifestly erroneous in finding the actions taken were sufficient to constitute an acceptance. Once there was an acceptance of the resignation, Ms. Creppel, on the CPC’s behalf, was not bound to accept Mr. Stern’s rescission. See Palmisano v. Dept. of Fleet Management, 97-745 at p. 8 (La.App. 5 Cir. 12/10/97), 704 So.2d 862, 865. We thus find no error in the Commission’s decision that Mr. Stern lacked a right to appeal his voluntary resignation.

_J^DECREE

For the foregoing reasons, we affirm the judgment of the Commission.

AFFIRMED.

      . No quorum was present at the semi-monthly meeting of the CPC held on December 18, 2001 at which this matter also was submitted.

      . The Commission made no express ruling on Mr. Stern's argument that his resignation, even if accepted, was not ratified by the CPC within sixty days as required by the Charter.

      . The CPC notes that the state civil service rules, particularly, Rule 12.11 on resignations, contain no requirement of written acceptance by the appointing authority of an employee's resignation; Rule 12.11 reads:
      (a) Whenever the services of a permanent or probationary employee are terminated by voluntary resignation, the appointing authority shall request that the employee submit a letter of resignation or complete other appropriate agency forms. Where it is impossible to secure the letter or form, the appointing authority shall prepare and maintain a written explanation of the reason(s), if known, and why the letter or form was not obtained.

        (b) An employee's resignation, submitted orally or in writing, shall become an accomplished fact upon

        1. Its acceptance by his appointing authority, notwithstanding that it may include a prospective effective date; or
      2. The occurrence of the effective date and time specified by him in his statement of intention to resign.
      (c) The preparation of a personnel status change form for the purpose of reporting an employee’s resignation to the Director shall constitute one type of acceptance of his resignation, when signed by the appointing authority.

        (d) An employee may not rescind or withdraw his resignation:

        1. Subsequent to its acceptance by his appointing authority unless such appointing authority agrees thereto.

      2. Subsequent to the effective date and time specified in his statement of intention to resign.
      3. Subsequent to the terminal date and hour specified in sub-section (c) hereof.

        (e) By mutual agreement between an employee and his appointing authority an accepted resignation may be withdrawn and rescinded at any time prior to the effective date and time specified by the employee in his notice of intention to resign.

      (f) When, after receiving notice that his dismissal has been proposed, an employee resigns to avoid dismissal, the Standard Form 1 reporting the resignation shall so indicate and a copy thereof shall be furnished to the employee.

      . See Armistead v. State, 22 Cal.3d 198, 149 Cal.Rptr. 1, 583 P.2d 744, 748 (1978) (holding that, unless valid enactments provide otherwise, employee is entitled to withdraw resignation if done (1) before effective date, (2) before acceptance, and (3) before appointing power acts in reliance on the resignation); Davis v. Marion County Engineer, 60 Ohio St.3d 53, 573 N.E.2d 51, 54 (1991) (holding that (1) public employee may rescind or withdraw tender of resignation prior to effective date, so long as public employer has not formally accepted such tender and (2) acceptance occurs where public employer initiates some type of affirmative action, preferably in writing, that clearly indicates to employee that tender of resignation is accepted); Ex Parte Rhea, 426 So.2d 838, 840 (Ala.1982) (holding that where correspondence operating as effective tender of resignation was not accepted prior to letter withdrawing the same, employee was entitled to be reinstated); Holt v. Personnel Advisory Board of the State of Missouri, 679 S.W.2d 340, 343 (Mo.App.W.D.1984), superceded by statute on other grounds (holding that resignation of merit system employee that was prospective or conditional in character may be withdrawn at any time before it is accepted and removal of such employee from state payroll after withdrawal of resignation was tantamount to involuntary dismissal); Poland v. Glover, 111 F.Supp. 675, 676 (W.D.N.Y.1953) (holding that prospective resignation of public employee could not be accepted, except upon the terms stated therein).

      . While we acknowledge the jurisprudence holding that a public officer or employee may unilaterally withdraw a prospective resignation at any time prior to its acceptance by the public employer, this jurisprudence provides little, if any, assistance on the factual issue before us of what conduct constitutes an acceptance. See Blackwell v. Mississippi Bd. of Animal Health, 784 So.2d 996, (Miss.App.2001), citing Haine v. Googe, 248 F.Supp. 349, 351 (S.D.N.Y.1965); Fitzpatrick v. Welch, 96 Idaho 280, 281-82, 527 P.2d 313, 314-15 (1974); Redmon v. McDaniel, 540 S.W.2d 870, 872 (Ky.1976); Rogers v. Carleton, 188 Okla. 470, 110 P.2d 908 (1941); Edwards v. United States, 103 U.S. 471, 26 L.Ed. 314 (1880); Armistead v. State Personnel Board, 22 Cal.3d 198, 149 Cal.Rptr. 1, 583 P.2d 744, 748 (1978). See generally 53 Am.Jur.2d Master and Servant, § 34, at 111 (1970) (contract of employment "is terminated where the employee tenders his resignation and the proffer is accepted by the employer.”); 63 Am.Jur.2d Public Officers and Employees § 166, at 730-31 (1972); Annot., Public Officer’s Withdrawal of Resignation Made to Be Effective at Future Date, 82 A.L.R.2d 750 (1962); 56 C.J.S. Master and Servant § 33, at 419 (1948) ("a contract of employment may be terminated by agreement of the parties....”).

      . Given our holding affirming the Commission's finding that Mr. Stern had no right to appeal his voluntary resignation, we pretermit the issue he raises regarding the failure to comply with Section 4-108 of the Charter, which provides:
      All boards shall have the same powers and duties with respect to their functions as those prescribed in this chapter for officers and department heads, unless otherwise provided by this Charter or applicable state and municipal law. They may delegate such powers and duties to their executive officers, provided that all matters involving appointment, discipline, removal or pay shall become null unless approved by the board within sixty days.
      We note, as CPC points out, this Charter provision is related to the provisions of La. Const, art. X, § 8(A), and to disciplinary actions which result in an employee's removal.


source: Caselaw Access Project

author: JjMICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Dawn Leleux, Wife of Patrick Neal STEWART v. Patrick Neal STEWART.
    No. 2003-C-1270.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.

      Mary Beoubay Petruccelli, Tracy Ann Petruccelli, Law Offices of Mary Beoubay Petruccelli, Chalmette, LA, for Respondent, Dawn Leleux Stewart.
    Rachel C. Marinovieh, New Orleans, LA, for Relator, Patrick Neal Stewart.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge, MAS N. TOBIAS JR.)
   JjMICHAEL E. KIRBY, Judge.

Relator, Patrick Neal Stewart, seeks review of a judgment denying his exception of improper venue.

According to the writ application and the response thereto, relator and the respondent, Dawn Leleux Stewart, were married for approximately twelve years and two children were born of the marriage. Their matrimonial domicile was in Orleans Parish. On March 17, 2003, a moving company hired by Mrs. Stewart arrived at the Orleans Parish residence and packed up her and her children’s personal belongings and some furniture. After the movers loaded the truck, Mrs. Stewart left the matrimonial domicile with the two children and drove to St. Bernard Parish where they were to live temporarily with Mrs. Stewart’s mother until the Act of Sale was passed on a house in St. Bernard Parish for which Mrs. Stewart had signed a purchase agreement.

Later on that same day, March 17, 2003, before meeting the movers in St. Bernard Parish at a storage unit she rented to store her belongings until she could move into her new house, Mrs. Stewart stopped at her lawyer’s office in Chalmette and executed two Declarations of Intent to Change Domicile to St. Bernard Parish. Mrs. Stewart’s lawyer filed her petition for divorce and one of the Declarations of 1 Jntent to Change Domicile in St. Bernard Parish on the afternoon of March 17, 2003. The other declaration was filed in Orleans Parish on March 24, 2003.

After leaving her lawyer’s office, Mrs. Stewart proceeded to the storage unit where she met the movers and her furniture was unloaded. She and her children spent the night of March 17, 2003 at Mrs. Stewart’s mother’s house in St. Bernard Parish. They stayed at her mother’s house until April 18, 2003, the day following the Act of Sale on the new house. After March 17, 2003, but prior to the hearing on the exception, Mrs. Stewart changed her driver’s license address and voter’s registration to St. Bernard Parish.

In response to Mrs. Stewart’s petition for divorce, Mr. Stewart filed an exception of improper venue, arguing that Mrs. Stewart had not established actual residency in St. Bernard Parish prior to the filing of her petition of divorce in that parish. Mr. Stewart filed a petition for divorce in Orleans Parish on March 24, 2003, and Mrs. Stewart responded with an exception of lis pendens. Following a hearing on April 28, 2003, the trial court in St. Bernard Parish denied the relator’s exception of improper venue on May 12, 2003. This writ application followed.

La. C.C.P. art. 3941 states:

A. An action for an annulment of marriage or for a divorce shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.
B. The venue provided in this Article may not be waived, and a judgment rendered in either of these actions by a court of improper venue is an absolute nullity.

l3La. C.C. art. 41, entitled Change of domicile; residence and intent, states:

A change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.

La. C.C. art. 42, entitled Proof of intent by written declaration, states:

This intention is proved by an express declaration of it before the recorders of the parishes, from which and to which he shall intend to remove.
This declaration is made in writing, is signed by the party making it, and registered by the recorder.

The party alleging a change in domicile has the burden of proving it, and the presumption in favor of the original domicile prevails if there is any reasonable doubt as to the change. Lacroix v. Lacroix, 32,293, p. 3 (La.App. 2 Cir. 9/22/99), 742 So.2d 1036, 1039. In establishing domicile, intent is based upon the actual state of facts and not what one declares them to be. Id.

Although we are unable to determine from the application and response whether Mrs. Stewart’s declaration of intent to change her domicile to St. Bernard Parish was filed immediately prior to or after the filing of her petition of divorce, the circumstances of this case show that Mrs. Stewart established that she had the intent to change her domicile to St. Bernard Parish on the date her petition for divorce was filed. Events that closely follow the filing of a petition for divorce are probative of the issue of intent to the extent that they are evidence of a continuing intent that existed on the date the petition for divorce was filed. Lacroix v. Lacroix, 32,293, pp. 5-6 (La.App. 2 Cir. 9/22/99), 742 So.2d 1036, 1040.

However, we find that Mrs. Stewart did not actually reside in St. Bernard Parish prior to filing her petition for divorce. In order to show a change of | ¿domicile under La. C.C. article 41, a party must demonstrate the intent to change domicile and must actually reside in the new domicile. By Mrs. Stewart’s own admission, her petition for divorce was filed before she spent one night in St. Bernard Parish after leaving the matrimonial domicile in Orleans Parish. In Haik v. Haik, 557 So.2d 453 (La.App. 5 Cir.1990), and in Lacroix v. Lacroix, supra, parties were found to have changed their domicile after living in their new parishes two and three days respectively prior to the filing of divorce proceedings. However, in Page v. Page, 512 So.2d 1234 (La.App. 5 Cir.1987), the Fifth Circuit disallowed a party’s attempt to declare a change in domicile where the evidence showed that he filed for divorce in Jefferson Parish on the same day or one day after moving out of the matrimonial domicile in Plaquemines Parish.

We are cognizant of the First Circuit’s holding in Sheets v. Sheets, 612 So.2d 842 (La.App. 1 Cir.1992), in which the court held that a party had shown that she had changed her domicile to a new parish even though she had not spent one night in the new parish before her petition for divorce was filed. We respectfully disagree with the Sheets holding, and decline to follow it. Additionally, we find that the case of Naccari v. Naccari, 611 So.2d 667 (La.App. 4 Cir.1992), cited by Mrs. Stewart, does not support Mrs. Stewart’s argument for allowing a same day change of domicile. In Naccari, the party found to have changed her domicile filed her petition for divorce more than three weeks after moving to another parish.

| ¡¡Domicile is an issue of fact to be determined on a case-by-case inquiry. Davis v. Glen Eagle Ship Management Corporation, 97-0878, p. 3 (La.App. 4 Cir. 8/27/97), 700 So.2d 228, 230. The factual circumstances of this case show that Mrs. Stewart did not reside in St. Bernard Parish until after the divorce petition was filed. Although she demonstrated her intention to change her domicile to St. Bernard Parish, she did not actually reside in that parish prior to filing her divorce petition. Therefore, Mrs. Stewart did not satisfy the requirements of La. C.C. article 41 for proving a change of domicile. Accordingly, we find that the trial court erred in denying Mr. Stewart’s exception of improper venue.

For the reasons stated above, the writ application is granted, and the trial court judgment denying Mr. Stewart’s exception of improper venue is reversed. Judgment is hereby rendered maintaining Mr. Stewart’s exception of improper venue, and this case is remanded to the trial court for further proceedings consistent with this opinion.

WRIT GRANTED; TRIAL COURT JUDGMENT REVERSED; JUDGMENT RENDERED; CASE REMANDED

      . The trial court in Orleans Parish has declined to rule on the exception of lis pendens until this Court rules on the present writ application.

      . In Page v. Page, supra, Mr. Page claimed ' that he moved out of the matrimonial domicile in Plaquemines Parish on September 2, 1986 and Mrs. Page claimed that he moved out on September 3, 1986. His petition for divorce was filed in Jefferson Parish on September 3, 1986. The court found that venue in Jefferson Parish was improper whether Mr. Page moved out on September 2, 1986 or September 3, 1986.


text:
    STATE of Louisiana v. Aaron HOUSTON.
    No. 2003-KA-0854.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.

      Eddie J. Jordan, Jr., District Attorney, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for Plaintifi/Ap-pellee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.
   JjMICHAEL E. KIRBY, Judge.

The defendant, Aaron Houston, was convicted of attempted possession of cocaine, a violation of La. R.S. 14:27 and 40:967(C), following a jury trial on November 29, 2000. The State filed a multiple bill charging that the defendant had five prior convictions. On August 29, 2001, the court found the defendant to be a fourth offender, because two of the prior convictions had occurred on the same day, and sentenced him to serve thirty years at hard labor. Both the defendant and the State appealed. This Court subsequently affirmed the defendant’s conviction and adjudication as a multiple offender. The Court vacated the defendant’s sentence and remanded for resentencing, finding merit in the State’s assignment of error that the trial court erred when it gave retroactive application to the amendments to La. R.S. 15:529.1 which were set forth in 2001 La. Acts 403. State v. Houston, 2002-0255 (La.App. 4 Cir. 4/24/02), 818 So.2d 253.

On July 26, 2002 the trial court sentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On April 1, 2003 the court granted him an out of time appeal from the resentencing.

12The facts of this case were set forth in this Court’s original appeal opinion as follows:

At trial, Officers Cedric Gray and Mike Montalbano testified that they were on pro-active patrol about 6:35 p.m. on September 19, 2000, in the 1200 block of South Robertson Street when they noticed the defendant. He was walking in the same direction the officers were driving, and after he glanced over his shoulder and saw them, he seemed to become nervous. He stopped, put his right hand in his right pants pocket, removed a bag, dropped it to the sidewalk, and began to walk fast. Although the officers were wearing plain clothes, they were driving a 1997 Crown Victoria with a blue light on the dash; Officer Gray opined that the car is easily recognized as a police car. The officers stopped and detained the defendant who said, “I didn’t drop that bag.” Officer Montalbano patted him down for weapons, and Officer Gray retrieved the bag that contained a glass tube.
Officer Harry O’Neal, an expert in analysis of controlled, dangerous substances, testified that he examined the tube taken as evidence in this case. Officer O’Neal performed two conclusive testing procedures on the residue in the tube and both tests indicated the substance was crack cocaine.
Aaron Houston, the thirty-nine year old defendant, took the stand and admitted he had prior convictions for possession of marijuana, distribution of false drugs, distribution of cocaine, possession of a crack pipe, simple burglary of a business and simple gang robbery. When asked to describe what happened the day he was arrested, Houston said that he had been released from jail for trespassing and being drunk in public that morning, but he went to work that day. Late that afternoon, he was walking to his second job when the police stopped him. As the officers who testified at trial were searching him, another police officer drove up. That man asked if he had any rocks, and Houston answered, “I ain’t have no rocks, man. I ain’t throwed [sic] nothing.” He said the officers discussed giving Houston a plain rock or arresting him for trespassing; however, the third officer, who was never named, showed the other two a crack pipe and said, “We got him now.” Houston was carrying a brown bag containing leftover lunch, and the officers took a sandwich bag from the brown bag and put the |3crack pipe in it. Houston told the officers what they were doing was wrong, and they told him he was “wrong for being in a drug area.” Under cross-examination, Houston admitted to being an ex-crack addict.

Houston, pp. 1-2, 818 So.2d at 254.

The defendant assigns two errors regarding his sentence. First, he alleges that a life sentence is excessive. Secondly, he argues that the 2001 amendments to La. R.S. 15:529.1A, which became effective on June 15, 2001, should be applied to him, resulting in a sentencing range of twenty years to life instead of the mandatory life sentence which the trial court imposed on remand. Because the second issue affects the possible sentence that could be imposed, it will be addressed first.

The defendant does not dispute that this Court has held repeatedly that the 2001 amendments to La. R.S. 15:529.1 apply only to those offenses which were committed after the effective date of the act. In fact, this Court vacated the original sentence imposed in this case on that very basis. Houston, pp. 4-5, 818 So.2d at 256. Nevertheless, the defendant argues that this Court should adopt the reasoning of the First Circuit, which held in State v. Parker, 2002-1477 (La.App. 1 Cir. 3/5/03), 845 So.2d 546, that the applicable habitual offender law to be applied is that in effect when the trial court adjudicates a defendant a multiple offender, not the version in effect when the defendant commits the underlying offense. The First Circuit specifically rejected contrary conclusions reached by this circuit as well as by the Second, Third, and Fifth Circuits. Id., ftne 6.

Not mentioned by the defendant, however, is a per curiam rendered by the Louisiana Supreme Court a month after the Parker case, State v. Barnes, 2002-2059 (La.4/4/03), 845 So.2d 354. In Barnes, the defendant had been sentenced to |4below the statutory minimum as a multiple offender, and the State filed a writ application with this Court, which was denied on the showing made because the State had not provided the sentencing transcript that might reflect the basis for the sentence. State v. Barnes, 2002-0653, unpub., (La.App. 4 Cir. 7/8/02). The Supreme Court granted the subsequent writ application filed by the State and remanded the case to the district court, stating:

Under the rule set out in Louisiana jurisprudence, the changes mandated by 2001 La. Acts 403 do not apply to sentences imposed for crimes committed before the act’s effective date. State v. Mayeux, 01-3408, p. 2-3 (La.6/21/02), 820 So.2d 524, 525-26; State v. Sugasti, 01-3407, p. 6-7 (La.6/21/02), 820 So.2d 518, 521-22. Operation of this rule extends to habitual offender sentences imposed pursuant to R.S. 15:529.1. State v. Harris, 02-0873, p. 2-5 (La.App. 5th Cir.1/28/03), 839 So.2d 291, 294; State v. Wilson, 02-0776, p. 10-11 (La.App. 4th Cir.1/22/03), 839 So.2d 206, 213; State v. Wade, 36,295, p. 11-13 (La.App. 2nd Cir.10/23/02), 832 So.2d 977, 986; State v. Bagneris, 02-0773, p. 4-5 (La.App. 4th Cir.10/16/02), 830 So.2d 1047, 1050; State v. Melancon, 01-1656, p. 9 (La.App. 4th Cir.8/21/02), 826 So.2d 633, 640; State v. Houston, 02-0255, p. 4 (La.App. 4th Cir.4/24/02), 818 So.2d 253, 255-56; State v. Flagg, 01-0965 (La.App. 5th Cir.3/26/02), 815 So.2d 208, 210-11. The case is accordingly remanded to the district court for imposition of sentence in accord with the sentencing statutes in force at the time of the offense.

Barnes, 845 So.2d at 354-55.

Therefore, considering the Supreme Court’s specific approval of this Court’s prior decision in this case, the defendant’s contention that the 2001 amendments to La. R.S. 15:529.1 should have been applied to reduce his mandatory minimum sentence to less than life imprisonment has no merit. We turn to the remaining |sissue, whether the mandatory life sentence is apparently constitutionally excessive.

In two cases, State v. Wilson, 2002-0776 (La.App. 4 Cir. 1/22/03), 839 So.2d 206, and State v. Rice, 2001-0215 (La.App. 4 Cir. 1/16/02) 807 So.2d 350, writ denied, 2002-0513 (La.9/13/02), 824 So.2d 1186, this Court discussed the relationship between the mandatory nature of the sentencing scheme in La. R.S. 15:529.1 and the trial court’s sentencing discretion under State v. Dorthey, 623 So.2d 1276 (La.1993), to impose a sentence below the statutory minimum if the failure to do so would render the sentence constitutionally excessive. In both those cases, the trial court indicated that it believed it had no discretion to impose any sentence below life. The Court in Rice, whose reasoning was followed again in Wilson, stated:

Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993). However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. Johnson, 97-1906, pp. 5-6, 709 So.2d at 675; see also State v. Young, 94-1636, p. 5 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 527. There must be substantial evidence to rebut the presumption of constitutionality. State v. Francis, 96-2389, p. 7 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. To rebut the presumption that the mandatory minimum sentence is | (¡constitutional, the defendant must show by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343; Johnson, 97-1906, p. 8, 709 So.2d at 677. “Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” Id.
Under the applicable section of La. R.S. 15:529.1, the district court is not given discretion as to the sentencing. The statute provides only one sentence for a defendant adjudicated a third-felony habitual offender where at least one of the three convictions was for a crime of violence as defined by La. R.S. 14:2(13). The sentence further subjects the offender to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. However, Rice argues that the district court erroneously believed that it could not, under any circumstances, impose any sentence other than life. He cites the Louisiana Supreme Court’s decision in DoHhey, which makes it clear that a court can find a mandatory minimum sentence under the Habitual Offender Law to be constitutionally excessive and impose a lesser sentence. While the Court is not required to consider Dorthey in sentencing a defendant, considering the enactment of Act 403, a signal that our legislature desires to revisit harsh sentencing in our state, we conclude that it was error for the district court not to have considered Dorthey in sentencing Rice. The district court did have the judicial powers to consider a sentence other than life imprisonment and the district court was erroneous in not considering an alternative sentence upon Rice’s request.

Rice pp. 5-7, 807 So.2d at 354.

In the instant case, the trial court at the time it initially sentenced the defendant believed the 2001 amendments to La. ít.S. 15:529.1 applied and thus chose to impose a sentence of thirty years from a possible range of twenty years to life imprisonment. It is clear therefore that, although the trial court could have 17done otherwise, it concluded that a life sentence was not appropriate despite the fact that the defendant actually had a total of eight criminal convictions. Moreover, the trial court at the time of the original sentencing concluded that it could “see no redeeming social factors” in the defendant and that the defendant had “contributed nothing” to society except to force the citizens of Louisiana and California, the two states in which he had been incarcerated, to pay “$30.00 a day to keep” him locked up. Despite this harsh characterization of the defendant, the court determined that a sentence of thirty years, and not life imprisonment, was appropriate. Notably, although in the multiple bill the State charged the defendant with being a sixth offender, all of those convictions are narcotics offenses. The only indication that the defendant had committed a crime of violence is a habitual offender bill attached to the certified packet of convictions from the State of California which reflects that in 1980 the defendant was convicted of robbery; that bill also reflects a 1983 conviction for burglary. Thus, although the defendant has a lengthy criminal record, all of his convictions in the last twenty years have been directly related to his addiction to cocaine, and none have involved weapons or violence, tending to indicate that a life sentence would be excessive, although a substantial sentence is still appropriate. See State v. Augillard, 03-0237 (La.App. 4 Cir. 6/4/03), 853 So.2d 17.

At the resentencing on July 26, 2002, the court gave no reasons for the life sentence it imposed except to note that this Court had remanded for resentencing. The court clarified that it understood that the defendant fell “under the old law of mandatory life” and, “[biased on that” sentenced the defendant to life imprisonment. When the defendant questioned the trial court about the ruling of this Court remanding for resentencing, which the defendant erroneously believed |Rwas based on this Court having agreed with his claim that thirty years was an excessive sentence for possession of a crack pipe, the trial court stated that this Court had vacated his sentence, “because it wasn’t enough. I thought thirty years was plenty.” The court then instructed that the court minutes reflect “as per ruling of the Fourth Circuit Court of Appeal, they had already set aside the thirty year sentence. I impose a sentence of life without benefit of probation, parole or suspension of sentence.”

As with the Wilson and Rice cases, it appears that the trial court in this case imposed the life sentence only because it believed it had no alternatives. However, this Court’s decision in the defendant’s original appeal addressed the State’s argument that the 2001 amendments could not be retroactively applied and found that it had merit. This Court did not address whether a life sentence would be constitutionally excessive.

Accordingly, as in Wilson and Rice, we find that this assignment of error has merit. We vacate the defendant’s sentence and remand the matter to the district court for consideration of sentence as permitted in Dorthey and in consideration of La.C.Cr.P. art. 894.1.

SENTENCE VACATED; REMANDED.

      . The defendant concedes that no motion to reconsider sentence was filed after his resen-tencing. While the State argues that the failure to file such a motion should bar consideration of the issue, we agree with the defendant that the issue has adequately been preserved because a motion was filed after his initial sentencing to thirty years and he raised excessive sentence as an assignment of error in the first appeal, but this Court did not address that claim because we vacated the sentence and remanded for resentenc-ing.


author: liMAX N. TOBIAS, JR., Judge.

text:
    OLD CARROLLTON NEIGHBORHOOD ASSOCIATION, et al. v. The CITY OF NEW ORLEANS by and Through ITS BOARD OF ZONING ADJUSTMENTS and Its Department of Public Safety and Permits.
    No. 2003-CA-0711.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.
    Rudy J. Cerone, McGlinchey Stafford, PLLC, and Thomas W. Milliner, and James R. Logan, IV, Logan & Soileau, LLC, New Orleans, LA, for Plaintiffs/Appellants, Old Carrollton Neighborhood Association, et al.
    M. Michelle Segu, Assistant City Attorney, Edward R. Washington, III, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Sherry S. Landry, Acting City Attorney, New Orleans, LA, for Defendant/Appellee, the City of New Orleans and its Board of Zoning Adjustments.
    David B. Sharpe, Lugenbuhl Wheaton Peck Rankin & Hubbard, and John Fut-rell, Lee, Futrell & Perles, L.L.P. and Nancy Marshall, Deutsch, Kerrigan & Stiles, New Orleans, LA, for St. Andrew’s Episcopal Church.

      Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.
   liMAX N. TOBIAS, JR., Judge.

The Old Carrollton Neighborhood Association and other neighboring homeowners (hereinafter collectively “Old Carrollton”) appeal the decision of the trial court to affirm the granting of a zoning variance by the Board of Zoning Adjustments (“BZA” or “the Board”) of the City of New Orleans to St. Andrews Episcopal Church (“Church”) to allow accessory use of a neighboring property with insufficient off-street parking. For the following reasons, we reverse.

The Church is located on South Carroll-ton Avenue in New Orleans. The Church, in an effort to expand to accommodate its growing congregation, purchased a house in January 2002 located across the street from the Church with the municipal address of 1031 South Carrollton Avenue to be used as a parish home and meeting hall. Prior to acquiring the property, on 13 July 2001, the Church applied for an accessory use variance to the BZA, so that the property could be used as a parish house and meeting hall. The matter was docketed by the BZA and was heard on 13 August 2001. A ruling on the application was deferred by the BZA at the 13 August meeting to September.

I ?On 14 September 2001, the Church amended its application, effectively withdrawing the request for an accessory use variance and replacing it with an application for a variance from the off-street parking requirements of the Comprehensive Zoning Ordinance (“CZO”) of the City of New Orleans. The application for the parking variance still identified the house at 1031 South Carrollton Avenue as the subject of the application.

Due to the revision of the application, the BZA assigned the matter a new docket number and slated it to be heard on 8 October 2001. At the 8 October 2001 meeting of the BZA, only four members of the seven-member Board were present. Following lengthy testimony by individuals both opposing and supporting the application, a vote was taken on the application. Three Board members voted to approve the application, with one member abstaining from the vote. During the meeting, the following exchange occurred between the Board members:

VICE-CHAIR: Okay, we have a motion for approval [of the Church’s application] with seven provisos. Do we have a second? We have a second by Ms. Banks. All in favor signify by aye. Do we have any oppositions? Do we have any abstentions?
BOARD MEMBER: I am going to abstention (sic). I am just still not comfortable.
VICE-CHAIR: Let me ask then from the legal staff[:] will you tell us the status of this docket if we have an abstention?
STAFF: It won’t carry.
VICE-CHAIR: Okay, the motion will not carry. Therefore, because we have one abstention (sic). |s Would you also share with the applicant and the audience what are the next steps that can be taken based on the fact that we have a motion that will not carry[?]
STAFF: Madam chair.
VICE-CHAIR: Yes.
STAFF: Since you don’t have a legal majority which, as you and I would both know, would be for an agreement, um, it would carry over to the next meeting.
VICE-CHAIR: Okay, so the motion will have to be ...
STAFF: I mean, it’s null and void — it’s not granted, it’s not denied. There’s no legal majority, correct?
VICE-CHAIR: Okay, so I just want to be clear and I want the audience to be clear that the fact that we have an abstention and there are only four members of the board here today is the reason that we will have to meet with and recover this information once again next month hopefully with five members.
BOARD MEMBER: Six.
VICE-CHAIR: Or, six. We could possibly have six.
BOARD MEMBER: Exactly.
VICE-CHAIR: Okay, thank you.

On 12 October 2001, the BZA issued a Notice of Disposition of Zoning Case. The notice addressed the request “to allow a parish home with insufficient off-street parking.” The body of the notice reads as follows:

Whereas the Board carefully considered the facts, the arguments for and against the application at the public hearing, and after considering the Comprehensive Zoning Ordinance No. 4265 MCS, as amended, the Board is of the opinion that the weight of the evidence indicates that in this special case all of the Standards for Variance of Article 14; Section 6.4 have not been met and therefore, |4for that reason, the request is hereby effectively DENIED relief from the Comprehensive Zoning Ordinance No. 4265 MCS, as amended, specifically as herein above stated.
The Board of Zoning Adjustments vote failed to pass with four (4) concurring votes — NO LEGAL MAJORITY. The Board has no legal majority for the motion that was offered (to grant); that means that the motion does not pass, but, neither is the waiver granted. It has the effect of denying the requested waiver even though the motion itself does not carry because the Board did not get four (4) votes for the waiver.
Further it is ordered that the decision of the Director of the Department of Safety and Permits be UPHELD and the PERMIT DENIED in accordance with this resolution. [Emphasis in original.]

The notice further lists the Board members present at the meeting and their respective votes on the matter. Finally, the notice is stamped at the bottom with a stamp reading:

DENIED
BOARD OF ZONING ADJUSTMENTS
[signed by Carla L. Major]
[VICE] CHAIRMAN

(The stamp is signed by Carla L. Major, the Vice-Chairman of the BZA at that time.) Accompanying the notice was a cover letter addressed to “Applicant” which, in part, advised the addressee that:

[i]f the request was DENIED, the same or substantially the same request may not be reheard until one year has elapsed. Additionally, the applicant has the right to appeal the ruling of the Board within 30 days of the decision in Civil District Court.

In spite of the issuance of the 12 October 2001 notice, the matter was once again placed on the November docket. Prior to the meeting, correspondence was sent to the Chairman of the BZA by at least one neighbor of the Church who happened to also be an attorney, expressing concern that the rules of the BZA did 1 Bnot allow re-docketing of and re-voting on the application after the failed vote in October. These concerns were not addressed by the BZA, however; when raised again at the Board meeting on 12 November 2001, the application passed, with five votes in favor and one against, effectively approving the variance request to allow a parish home at the property in question with insufficient off-street parking spaces. Thereafter, on 16 November 2001, the BZA entered its decision in the official record that the application was approved.

Following the approval of the variance by the BZA, Old Carrollton filed a writ of certiorari with the Civil District Court for the Parish of Orleans, alleging that the BZA improperly and illegally granted the variance in violation of its own rules. It further appealed the decision of the BZA on the merits, contending that the BZA (1) did not have jurisdiction to grant the off-street parking variance; (2) made no findings of fact on which the decision to grant the variance could be based; and (3) adopted a clearly erroneous definition of the term “parish home,” thereby violating the Establishment Clause of the First Amendment to the United States Constitution and of applicable Louisiana law. Old Carrollton finally contended that the BZA acted with gross negligence, bad faith and/or malice in rendering its decision and further prayed for attorneys’ fees and costs. The Church filed an intervention in the trial court action.

The trial court, in a judgment dated 18 November 2002, upheld the actions of the BZA and affirmed the approval of the variance requested by the Church. Specifically, the trial court found that the-BZA did not abuse its discretion in 1 ¿finding that the property in question fell within the uses of a parish home or in granting the parking variance. Further, the trial court found that the BZA did not violate its own rules in entertaining the application on 12 November 2001, insofar as there was no denial of the application on 8 October 2001 and because it found that the provision disallowing re-hearings for one calendar year applies to appeals to the BZA, and not to applications for variances.

Old Carrollton asserts that the trial court erred in not overturning the decision of the BZA rendered on 16 November 2001 on the exact same grounds on which it based its writ of certiorari to the trial court. Foremost is.their contention that the BZA’s ultimate ruling was illegal as it was not properly before the BZA on 12 November 2001 after being denied on 8 October 2001.

Old Carrollton contends that BZA Rule Sections II(I) and III(K) provide that when an application is denied by the BZA, the same or substantially the same matter may not be reheard and/or brought back before the BZA for at least one calendar year commencing from the date of denial. Appellants point out that a vote on the amended application was taken on 8 October 2001, the results of which are clearly indicated on the notice of disposition issued by the Board. They maintain that the Board is unable under its own rules to hold a second vote on an application that has already been denied by a legal vote of the Board. Further, they argue that the Board should not be able to disregard its own rules; to do so, they contend, essentially deprives the opponents of the application of due process.

The BZA rules provide that a quorum of the Board consists of four members and that a quorum must be present to constitute a legally held meeting of the Board. BZA Rule Section 11(F). Once a quorum is established, both the CZO of |7the City of New Orleans and the BZA rules provide that “[t]he concurring vote of four members of the Board of Zoning Adjustments shall be necessary to authorize a variance or special exception.” BZA Rule 11(F). See also, CZO Section 14.8.2. The transcript of the 8 October 2001 meeting on this matter reveals that a vote was taken on the application. At that meeting, although a legal quorum of four members were present, only three Board members voted in favor of the application by the Church. The remaining member of the Board abstained. Because the BZA rules provide that four votes are required to approve an application, there were insufficient votes to grant the application at the October meeting.

The crux of the question is whether the vote that took place on 8 October 2001 constituted a “denial” of the matter such that the Board should have been prevented from re-addressing the same issue on 12 November 2001. BZA Rule II(I) provides, in pertinent part:

If the Board denies the appeal, a re-appeal or rehearing of substantially the same matter shall not be heard by the Board within one (1) calendar year commencing from the date of the denial....

Old Carrollton contends that this rule should have prevented the BZA from addressing the application just one month later in November 2001 and that the “reconsideration” of the issue was illegal under those rules.

The City of New Orleans and the Church argue that the provision disallowing a rehearing within one year of a denial does not apply to the Church’s application, because the BZA did not render a ruling on 8 October 2001. The City maintains that the motion to grant the variance did not carry because only three | ¿members voted affirmatively, but that regardless, a majority of the votes at the meeting were in favor of the motion, with no negative votes and one abstention. Therefore, they argue, a denial of the motion did not occur. They assert that the transcript clearly demonstrates that the constitution of the Board on 8 October 2001 was such that the “vote” on that day was a nullity and that the Board desired to take up the matter at a later date.

The City’s argument is tenuous at best. What the transcript of the hearing on 8 October 2001 reveals is that a vote was taken of the four Board members present regarding approval of the Church’s application with seven conditions. The motion was made to approve the application, seconded, and all were asked to signify their approval of the motion with an “aye.” It appears that all members of the Board so responded, except for one member who declined to participate in the vote. As such, there was a legally held vote on the motion properly brought before the Board. Further, the Notice of Disposition of Zoning Case issued by the BZA on 12 October 2001 is in the form of and constitutes essentially a judgment issued by the quasi-judicial entity on the Church’s application for variance, lending credence to the stance that a vote on the application was held and recorded by the BZA as required by law. See, French Quarter Citizens for the Preservation of Residential Quality, Inc. v. The New Orleans City Planning Commission, et al., 99-2154, p. 4 (La.App. 4 Cir. 4/12/00), 763 So.2d 17, 19; La. R.S. 33:4726(C)(1). Thus, there is nothing other than the exchange between the legal staff member and the Chairman of the BZA on 8 October 2001 at the board meeting to suggest that the vote that occurred on that day was, as the staff member put it, “null and void.”

IflThe vote on 12 November 2001 on the Church’s application was illegal and its result is null and void, contrary to the representation of the BZA legal staff. The vote was held in response to a “renewed” motion to approve the Church’s application:

CHAIR: ... What is the pleasure of the Board?
BOARD MEMBER: I offer renewal of the motion I made last month.
CHAIR: Okay. And your second is from Mrs. Banks as I understand it. Is there a need, once again I am going to question the Board as there as (sic) to whether or not there is a need for the seven provisos to be read or is there anything to be added to those provisos?
BOARD MEMBER: I am not adding anything so this renewal will be just as it was last month.
CHAIR: Motion was to grant or motion I should say is to grant. All in favor of the motion to grant please signify by saying aye, aye, any opposition to the motion? Is there anyone abstaining from the motion?

BZA Rule Section (II)(E)(1) provides that “[i]n the absence of any provision to the contrary, the rules of procedure provided by Robert’s Rules of Order shall prevail.” To the extent the BZA rules do not address the finer points of parliamentary procedure, Robert’s Rules of Order (10th ed.) apply. The BZA rules do not specifically provide guidance as to whether a second vote on a matter already decided by a legally held vote is proeedurally proper. This “renewed” motion is clearly an improper motion under parliamentary procedure, as outlined in Robert’s Rules of Order. RONR (10th ed.), p. 332, 1. 18-22. (“Likewise, motions are out of order if they conflict with a motion that has been adopted by the society and has |inbeen neither rescinded, nor reconsidered and rejected after adoption. Such conflicting motions, if adopted, are null and void unless adopted by the vote required to rescind or amend the motion previously adopted.”) Thus, even if the rules of the BZA allowed for a reconsideration of a denial of application for variance before the expiration of one year, which they do not, no proper motion to reconsider was made by any member of the BZA on 12 November 2001 on which a vote could le-gaily take place. Instead, the vote was taken on a motion that had already been made and dispensed with on 8 October 2001.

To disregard the vote that did take place on 8 October 2001 is a due process violation of the neighbors in opposition to the variance and gives the appearance that a certain result was desired by the Board. In fact, the appellants suggest in their brief that the Chairman of the BZA disregarded the applicable rules and procedures of the BZA in an effort to have the application pass. There is no evidence to convince us that this is the case; rather, due to a misinterpretation and misunderstanding of the BZA rules and procedures, the Board in taking a final vote on 8 October 2001 was bound by the decision taken on that day. When the motion to approve did not pass by at least four votes, it failed, and that decision became the decision of the BZA. The Board committed legal error when it addressed the matter at the 12 November 2001 meeting. In fact, we note that at the 8 October 2001 meeting, the Chairman was advised by the “legal staff’ that there were insufficient votes to approve the application and that the matter could be | ^rescheduled for the November meeting. Although this advice was in error, there is no reason to suspect that any member of the BZA intentionally disregarded the rules binding their conduct for the express purpose of favoring one side of this conflict over any other. We are certain, however, that the BZA rules as written were designed to eliminate not only impropriety by the Board but also the appearance of impropriety.

In fact, Robert’s Rules of Order provides the following regarding the importance to adherence to procedural rules:

An organized society requires certain rules to establish its basic structure and manner of operation. In addition, a need for formally adopted rules of procedure arises in any assembly, principally because there may be a disagreement or a lack of understanding as to what is parliamentary law regarding points that can affect the outcome of substantive issues.

RONR (10th ed.), p. 9,1. 35-36, p. 10,1.1-3. The risk of procedural gaffes affecting substantive issues is certainly borne out in the case sub judice; the improper second vote on the Church’s application changed the outcome of the dispute between the Church and Old Carrollton.

The City and the Church further argue that the matter was properly heard on 12 November 2001 because the CZO and the rules of the BZA clearly distinguish between applications for variances and “appeals.” They assert that the provision relied upon by Old Carrollton, BZA Rule Section II(J), applies to appeals and not requests for variances. An examination of the rules, however, does not reveal such a demarcation between procedures relevant to the handling of appeals and those relevant to the handling of requests for variances. The BZA rules are divided into four sections: Section I — Structure; Section II — Procedures; Section III — General Rules; and Section IV — Amendments. The procedures outlined in Sections II and 11{>IH do not subdivide further to impose separate procedural rules on appeals of decisions of the city’s Department of Safety and Permits and applications for variances. If it is intended that there be separate procedural rules for adjudicating the two types of applications one might make to the BZA, the rules do not bear out that intent. In fact, we note that the notice and cover letter sent to the Church following the vote on 8 October 2001 reference the very rule the City now wishes to argue does not apply.

Finally, Old Carrollton prays for attorneys’ fees and costs on the grounds that La. R.S. 33:4727(E)(5) allows recovery for such damages in cases in which the Board acted with gross negligence, in bad faith, or with malice in making the decision from which the appeal was originally taken. We do not find that the Board acted with gross negligence, in bad faith, or with malice. It does appear that the members of the Board and the legal staff misunderstood and misapplied the procedural rules by which the Board was bound to act, but there is nothing to suggest any bad faith, malice, or conduct rising to the level of gross negligence. In fact, we note that the BZA entertained argument from numerous individuals in opposition to the variance, and attempted to give a platform to all interested parties at more than one meeting of the Board.

Because we find that the BZA improperly voted on the Church’s application on 12 November 2001, the approval of the application is null and void. Therefore, we do not address the actual merits of the Church’s application, as those additional assignments of error are moot. The judgment of the trial court is reversed.

REVERSED.

      . Appellants are Old Carrollton Neighborhood Association, Carrollton/Riverbend Residents’ Association, Inc., Maple Area Residents, Inc., Nancy Turner, and Jacqueline Justice.

      . The Charter for the City of New Orleans § 5-409 provides, in pertinent part, that "[t]here shall be attached to the Commission a Board of Zoning Adjustments to consist of seven members who shall be domiciled in and electors of the City, appointed by the Mayor with approval of the Council for five-year terms, staggered so that the term of one or two members shall expire each year.”

      . We note that the Board member who expressed reservations concerning the application and abstained from the vote on 8 October 2001 was the sole negative vote on 12 November 2001.

      . As noted previously, we use the term "Old Carrollton" to refer to all interested homeowners who participated in the filing of first the writ of certiorari and then the appeal to this Court, even though not all of the appellants are members of Old Carrollton Neighborhood Association. See footnote 1, supra.

      . BZA Rule II(H)(a) provides, in pertinent part: "... Every appeal or application for variation or modification shall be disallowed unless the concurring vote of four (4) members of the Board shall favor the appeal or application....”

      . We note that the abstention by the Board member on 8 October 2001 operated as a vote in opposition to the application for variance. See, City of Pineville v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 3352, 2000-1983, pp. 4-5 (La.6/29/01), 791 So.2d 609, 613.

      . Neither does the record of the 8 October 2001 meeting indicate that a motion to reconsider was made on that date.

      . The transcript does not give the identity or qualifications of the "staff' member who advised the Board regarding postponement of this issue, but the Chairman refers to the staff person in question as "legal.”


author: hTOBIAS, Judge.

text:
    Sebron MAGEE, Sr. v. Otis D. BROWN.
    No. 2003-CA-0600.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.

      Sean P. Early, Klotz & Early, New Orleans, LA, for Plaintiff/Appellant, Sebron Magee.
    Anthony J. Russo, Dean J. Favret, Fav-ret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Defendant/Appellant, Otis D. Brown.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.)
   hTOBIAS, Judge.

This case involves the attempted sale of a C.P.N.C. number that was issued by the City of New Orleans to permit its holder to operate a taxicab in and around the city. The trial court held in favor of the plaintiff; both parties have appealed the judgment. After reviewing the record and applicable law, we reverse the trial court and enter judgment for the defendant.

On 30 May 1990, the defendant, Otis D. Brown (“Brown”), entered into a lease-purchase agreement with William A. Marks, Inc. (“Marks”) to obtain the rights to use a vehicle and C.P.N.C. No. 1520. The agreement provided that Brown would make a down payment of $6,500.00 towards the purchase of the taxicab and C.P.N.C. number and thereafter make weekly payments of $97.00 for the duration of the lease, which ended on 30 May 1992. It was agreed that at the conclusion of the lease, Brown would have an option to purchase the vehicle with the C.P.N.C. number for the remaining balance of $10,088.00. The agreement required that Brown place as collateral for the lease both a C.P.N.C. number | ^personally owned by him and C.P.N.C. No. 1520. The agreement between Marks and Brown was extended numerous times, with the vehicle and C.P.N.C. No. 1520 eventually being bought in July 1999 by Malibu Cab Co., Inc., a company owned by Brown and two other people.

In October 1994, while Brown was leasing C.P.N.C. No. 1520 from Marks, the plaintiff, Sebron Magee, Sr. (“Magee”), approached Brown seeking assistance in obtaining a C.P.N.C. number. The parties entered into a written contract, entitled “Buyer Agreement,” which was prepared by Magee, and provided that Magee would pay Brown the sum of $135.00 per week for a term of 234 weeks, at which time, C.P.N.C. No. 1520 would become the property of Magee. The total purchase price for the C.P.N.C. number was $31,590.00.

After making approximately 216 of the 234 weekly payments, Brown canceled the contract in December 1998 because Magee had ceased making payments. Magee filed suit for specific performance or, in the alternative, a return of all monies paid by him to Brown.

A default judgment was entered against Brown on 20 September 2000, which decreed that Magee had good and final title to C.P.N.C. No. 1520, and ordered Brown to surrender the C.P.N.C. number to Ma-gee.

Brown filed a motion for new trial, which was granted by the trial court on 21 October 2000. The case was set for trial and tried by the trial court on 23 July 2002, which rendered judgment on 17 September 2002 in Magee’s favor in the amount of $24,570.00, plus interest from the date of demand, and all costs. In its reasons for judgment, the trial court stated:

|sThe plaintiff and defendant entered into a buyer’s agreement for the purchase of CPNC No. 1520. The CPNC in question did not belong to the defendant, rather it was registered in the name of William Marks, Inc. In essence, the defendant entered into an agreement which obligated the plaintiff to pay defendant’s obligation to Marks. The Court concludes that the plaintiff knew that the CPNC was not registered in defendant’s name. Unfortunately for the plaintiff, he ran into some medical and financial difficulties leaving him unable to honor his obligation to pay. Plaintiff is entitled to the return of the purchase price paid. He has proven payment of 182 checks in the amount of $24,570.00. This Court will not reduce this amount from any benefit the plaintiff may have received. To do so would reward the defendant for entering into an agreement he knew full well he could not honor. The CPNC wasn’t registered in his name so he couldn’t transfer it to the plaintiff.

Brown argues that the trial court erred in returning the purchase price to Magee because Magee knew that Brown did not own the C.P.N.C. number. In the alternative, Brown argues that any return of the purchase price should be offset by the benefits Magee derived through use of the C.P.N.C. number for four years.

Magee has also appealed, arguing that because he attempted to pay the balance of what he owed under the contract, which Brown refused, he is the rightful owner of the C.P.N.C. number and should be awarded specific performance under the contract. In addition, Magee argues that he should be awarded the profits he would have made from the use of the C.P.N.C. number from December 1998 to the date of trial.

The proper standard of review for a Louisiana appellate court is whether the trial court is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). While the manifest error standard applies to our review of facts found below, we are required to examine the record as well for legal error. Where |4an error of law taints the record, we are not bound to affirm the judgment of the lower court. Id. at 844 n. 2.

A review of the testimony contained in the record reveals that Magee was aware that C.P.N.C. No. 1520 was registered to Marks. In fact, because of this fact, the Marks name was displayed on Magee’s taxicab that was using C.P.N.C. No. 1520. In addition, the record supports the finding that Magee did not honor his obligation to pay under the contract with Brown. Nothing in the contract, as drafted by Magee, prevented Brown from refusing to accept any further payments in the event of default and demanding return of C.P.N.C. No. 1520. The contract between them provided that should Magee become ill and unable to work, he would have a grace period of two weeks to validate the agreement. The evidence shows that Magee did not comply with this term of the contract.

The record also reveals that Magee derived substantial benefit from the use of C.P.N.C. No. 1520 while it was in his possession from October 1994 through December 1998. For example, in 1998, Magee made a profit of $25,400.00 by using the C.P.N.C. number. Although Magee did not complete his obligations under the contract and assume ownership of C.P.N.C. No. 1520, he had exclusive use of the license during the time in question.

Under Louisiana law, both the good faith and bad faith seller are entitled to a credit for the buyer’s use if the buyer reaped a benefit from that use. La. C. C arts. 2531 and 2545. There is no established rule for the calculation of credit for use. Chenniliaro v. Kaufman & Broad Home Systems of Louisiana, Inc., 93-1126, p. 11 (La.App. 1 Cir. 1/19/94), 636 So.2d 246, 253. However, in Capitol City Leasing Corp. v. Hill, 404 So.2d 935, 939 (La.1981), the Supreme Court held:

IsCompensation for the buyer’s use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.

Id. at 939, quoting Alexander v. Burroughs Corp., 359 So.2d 607, 610-11 (La.1978). Thus, a credit for a purchaser’s use of a thing may be proper in certain instances, even in favor of a bad faith seller. Alexander, supra. The grant of a credit for use is discretionary with the trial court. Guillory v. Jim Tatman’s Mobile Homes, Inc., 490 So.2d 1185 (La.App. 3 Cir.1986). While it is true that La. C.C. art. 2531 provides that a seller shall receive a “credit for the value of any fruits or use which the purchaser has drawn” from the thing, the seller has the burden of proving the value of the buyer’s use of the thing. Holloway v. Gulf Motors, Inc., 588 So.2d 1322 (La.App. 2 Cir.1991).

In the instant case, we find that the trial court abused its discretion in failing to award Brown a credit for Magee’s use of C.P.N.C. No. 1520 for a period of four years. While Brown did not own the license at the time he entered into the contract with Magee, both parties were aware of the circumstances surrounding the transaction. In fact, Magee admitted that he had no other way to obtain ownership of a C.P.N.C. number without such an arrangement. The record indicates that both parties benefited from the contract; it would be inequitable to require Brown to refund the payments to Magee in light of the considerable benefit received by Ma-gee. The amounts paid by Magee to Brown are offset by the benefit received from the use of the thing. Accordingly, we reverse the judgment of the trial court and set aside the award in favor of Magee.

| (¡Likewise, we find Magee’s argument on appeal to be without merit. The record reflects that he did not honor the contract in its entirety; therefore, he is not entitled to specific performance as requested. Pursuant to La. C.C. art. 2056: “In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.”

Based on the above, we reverse the judgment of the trial court. Each party is to pay his own costs.

REVERSED AND RENDERED.

      . A C.P.N.C., or Certificate of Public Necessity and Convenience, is a license required of all taxicabs and other for hire vehicles by the taxicab and for hire vehicles bureau of the City of New Orleans. (New Orleans City Code § 162-151.)

      . The remaining balance changed every time the lease was extended.


author: 11 EDWIN A. LOMBARD, Judge.

text:
    Rolanda LEWIS v. EVANS QUALITY TEMPS.
    No. 2003-CA-0353.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 2003.

      Milton Osborne, Jr., New Orleans, LA, for Plaintiff/Appellant.
    William G. Tabb, III, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   11 EDWIN A. LOMBARD, Judge.

This appeal is from a judgment entered by a workers’ compensation administrative law judge (ALJ) denying plaintiffiappel-lant’s motion to amend her complaint and dismissing her claim with prejudice. Appellant sets forth two assignments of error in this appeal. First, she contends that the ALJ erred by failing to grant her request to amend her claim to add a new defendant; and second, that the ALJ erred by dismissing her claim with prejudice.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In August 2000, counsel filed a claim for workers’ compensation on behalf of appellant, Rolanda Lewis, alleging that she injured her back on April 4, 2000, while employed by defendant/appellee, Evans Quality Temps, on the job at Delta Petroleum. Defendant/appellee Evans Quality Temps answered the claim on November 9, 2000, indicating that at the time of the alleged injury, workers’ compensation insurance was provided by “self-insured & Liberty Mutual.”

An order of dismissal for non-prosecution was issued by the Office of Workers’ Compensation on January 22, 2001. The dismissal was without prejudice and the order indicated that the case could be reinstated upon a showing of good cause filed within 30 days of order. On February 22, 2001, counsel for | ¡^appellant filed a motion for reinstatement on her behalf. The motion was granted and a telephone status conference was set for April 3, 2001.

The trial was initially set for July 16, 2001. Defendant/appellee filed an amended answer on April 19, 2001, pleading the defense of intoxication and on July 11, 2001, filed its pretrial statement, stipulating that appellant was in its employ at the time of the alleged injury and working as a general laborer at Delta Petroleum. On July 18, 2001, however, the trial was reset for October 15, 2001.

On September 11, 2001, defendant/ap-pellee filed a motion to compel discovery. Counsel for appellant advised the ALJ on September 26, 2001, that he would provide discovery answers no later than October 3, 2001, an order was entered to that effect, and the trial was continued to December 11, 2001. Discovery was not forthcoming, however, and on October 31, 2001, defendant/appellee filed a motion to compel the appellant to show cause why her claim should not be dismissed with prejudice. On November 28, 2001, after a hearing on appellee’s motion, an order was issued ordering appellant to produce answers to discovery by December 7, 2001, failing which the case would be dismissed, and continuing the trial until March 4, 2002. The trial was subsequently continued until May 10, 2002. On that date, the ALJ issued an order continuing the trial until July 18, 2002, and ordering the appellant to file pretrial responses within twenty days. On June 6, 2002, defendant/appellee moved for an order to compel the appellant to show cause why her claim should not be dismissed with prejudice for failing to comply with the judge’s order to file a pretrial statement. On June 7, 2002, the ALJ issued an order for the appellant to appear on June 26, 2002, and show cause why her claim should not be dismissed with prejudice.

| (¡Appellant’s counsel appeared at the hearing on June 26, 2002, and informed the ALJ that he had been unable to locate or contact his client to obtain the information necessary for the pretrial statement. In addition, he filed a motion to amend to add Delta Petroleum as a defendant. The ALJ denied the motion to amend and issued an order dismissing the case with prejudice for claimant’s failure to appear at the hearing despite the court’s notice to her and for counsel’s failure to filed pretrial responses in accordance with the order of May 10, 2002.

STANDARD OF REVIEW

The issue before the court is whether the ALJ abused her discretion in denying the motion to amend and imposing the harsh sanction of dismissal with prejudice. A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880, 882 n. 2 (La.1993). To the extent that a denial of a motion to amend or a determination to dismiss for failure to comply with pretrial orders constitutes a discretionary determination rather than a factual finding or conclusion of law, the determination is reviewed for abuse of discretion. Benware v. Means, 99-1410 (La.1/19/00), p. 4, 752 So.2d 841, 847.

ASSIGNMENT OF ERROR 1

Appellant argues that the ALJ abused her discretion in dismissing her claim with prejudice. First, appellant argues that the dismissal was erroneous because no evidence was presented in support of the defendant/appellee’s motion to dismiss with prejudice. The defendant/appellee’s motion was based upon the appellant’s failure to comply with the court’s order to file a pretrial statement on or before LMay 30, 2002, however, and it is undisputed that the appellant failed to file the pretrial statement as ordered.

Next, the appellant contends that the ALJ failed to indicate the claim would be dismissed with prejudice for non-compliance with the order to file a pretrial statement. This contention is contrary to the record evidence, however. The order to appear and show cause issued by the ALJ on June 7, 2002, ordered the Plaintiff to appear and show cause on June 26, 2002, why her claim should not be dismissed with prejudice.

Although dismissal of appellant’s claim is a harsh sanction, in this case it was based in part upon the appellant’s failure to comply with the court order that she appear at the hearing on June 26, 2002, and not solely upon counsel’s actions. Moreover, counsel’s failure to comply with the pretrial orders was based in part on his inability to find and communicate with his client despite good faith efforts to do so. Based upon these circumstances, we find no abuse of discretion or error of law in the ALJ’s dismissal of appellant’s claim with prejudice.

ASSIGNMENT OF ERROR 2

Appellant also argues that the denial of her motion to amend was an abuse of discretion and error of law. By motion filed on June 26, 2002, appellant sought to add Delta Petroleum as a defendant. Appellant contends that this amendment was necessary because defendant/appellee failed to demonstrate that it had workers’ compensation. However, a review of the record indicates that defendant/appellee filed its answer on November 9, 2000, stating that its workers’ compensation insurance provider was “self-insured & Liberty Mutual.” The motion to amend was not filed until nineteen months later, however, and on the day that the claim was dismissed. Moreover, Delta Petroleum’s identity as a possible defendant was Isknown at the time of the accident. Accordingly, under these circumstances, we find no abuse of discretion or error of law in the ALJ’s denial of appellant’s motion to amend.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation administrative law judge is affirmed.

AFFIRMED.

      . The issue in Benware, which both parties cite as the appropriate standard of review in this case, was whether a state trial judge abused his discretion in imposing harsh sanctions upon a defendant in the legal malpractice action for failing to comply with his obligations imposed by the court for the preparation of the pre-trial order.