author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Earl RAZOR v. NEW ORLEANS DEPARTMENT OF POLICE.
    No. 2004-CA-2002.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2006.

      Gary M. Pendergast, New Orleans, Counsel for Plaintiff/Appellant.
    Sherry Landry, City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, New Orleans, Counsel for Defendani/Ap-pellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge DENNIS R. BAGNERIS Sr.)
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff-appellant, Earl Razor (“Razor”), appeals a ruling against him and in favor of the defendant-appellee, the New Orleans Police Department (“NOPD”), by the Civil Service Commission upholding Razor’s termination of employment from the NOPD. For the reasons that follow, we affirm.

Razor was hired as a police officer with the NOPD on September 29, 1996. On or about June 9, 2003, Razor was part of a drug investigation at the Econo Lounge on Tulane Avenue in New Orleans. The NOPD received a tip from a confidential informant who claimed to know the identity of the drug dealer who supplied the heroin involved in a drug overdose at the Econo Lounge earlier that same day. The police conducted a surveillance and investigation that called for the informant to contact the suspected dealer, Richmond “Cash” Hamilton (“Hamilton”), and arrange to meet with him in a room at the Econo Lounge. When Hamilton arrived, he refused to go to the informant’s room. Subsequently, Narcotics Detective Steven Payne stopped Hamilton in the lounge area and conducted a pat-down search. Officer Payne testified that he pulled back Hamilton’s waistband and observed what he believed to be several packets of heroin in Hamilton’s buttocks area. He did not immediately arrest Hamilton for pdrug possession because he did not want Hamilton to suspect that he had been set up by the informant. Instead, Officer Payne arrested Hamilton for trespassing.

After he arrived at the station, the police officers, could not find the heroin. Nevertheless, Hamilton was booked for possession of heroin. On the ride to Central Lock-Up, Hamilton informed Sergeant William Ceravola that a black officer (referring to Razor) had stood watch over him prior to his transport to the station. During this time, the heroin fell from his pants, Razor allegedly picked it up and told Hamilton not to tell anyone about it.

Hamilton’s allegations were reported to Sergeant Lerrol Foy of the Public Integrity Unit. Sgt. Foy took statements from Sgt. Ceravola, Officer Payne and from Hamilton. Based on these statements, Sgt. Foy obtained a warrant to search Razor’s house and the police car assigned to Razor. Drugs were not found in Razor’s house; however, officers found cocaine residue wrapped in cellophane in the glove compartment of his car.

As a result of these findings, Razor was ordered to undergo a “reasonable suspicion” drug test. The test results were positive for cocaine. Razor received an immediate one hundred twenty day suspension on June 26, 2003.

On September 18, 2004, Deputy Superintendent Warren J. Riley, Chief Operations ■ Officer, held a hearing to review Razor’s suspension. After that hearing, the Superintendent of Police, Edwin Compass, III, approved the recommendation to suspend Razor for the eighty-three calendar days already served and to dismiss him from the NOPD. Razor appealed this action to the Civil Service Commission.

The Civil Service Commission consolidated Razor’s suspension and termination into one proceeding. At the conclusion of the hearings, the hearing ^officer, Harry S. Tervalon, Jr., recommended that the appeal be denied. Thereafter, on July 19, 2004, the Civil Service Commission formally denied the appeal. It is from this denial of his appeal to the Civil Service Commission that Razor appeals to this Court.

The Louisiana Constitution of 1974 established the City Civil Service, which includes paid firemen and municipal policemen. La. Const art. X, Sec. 1(B); George v. Department of Fire, 93-2421, (La.App. 4 Cir. 5/17/94), 637 So.2d 1097, 1101; Walters v. Department of Police of New Orleans, 454 So.2d 106 (La.1984). The burden of proof on appeal to the Civil Service Commission from a disciplinary action as to the factual basis for the disciplinary action is on the appointing authority, which in the instant case is the NOPD. Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La.1984); Goins v. Department of Police, 570 So.2d 93 (La.App. 4 Cir.1990).

The Civil Service Commission has the duty to decide independently from the facts presented whether the NOPD had good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. Walters, supra; George, supra. This is significant in the instant case, because while the Civil Service Commission affirmed the decision of the hearing officer, it did so for different reasons, which it is entitled to do. Legal cause exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). The appointing authority has the burden of proving by a preponderance of the evidence the occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service. Id.; George, supra. While these facts must be clearly established, they |4need not be established beyond a reasonable doubt. Id. This Court applies the clearly wrong/manifest error standard of review to the commission’s factual findings. George v. Department of Police, 93-2421, p. (La.App. 4 Cir. 5/17/94), 637 So.2d 1097, 1101. When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Id.; Barquet v. Department of Welfare, 620 So.2d 501, 505 (La.App. 4 Cir.1993). The Commission’s findings of fact cannot be manifestly erroneous where there are two permissible views of the evidence. Id.; George, supra. When reviewing a Commission conclusion as to the existence or absence of cause for dismissal, the appellate court should not reverse the Commission’s decision unless it is arbitrary, capricious, or is an abuse of discretion. Id.; Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 112 (La.1984).

The Civil Service Commission found that:

The Appointing Authority has established by a preponderance of the evidence that the Appellant had cocaine in his system at the time that he submitted to a drug screening. As such, the Appellant has no defense to the charges that resulted in his termination.

The appellant, Razor, does not challenge the results of the drug test. Nor does Razor challenge the legality of the search warrant that led to the discovery of the cocaine residue which in turn was a major factor used by the NOPD to justify the “reasonable suspicion” drug test that led to his suspension and eventual termination by the NOPD.

Razor complains that the Civil Service Commission committed manifest error in failing to recognize that the NOPD violated his rights pursuant to La. R.S. 40:2531 et seq., commonly known as the “police officer’s bill of rights.” Specifically, La. R.S. 40:2531B(7) provides in part that “each investigation of a 1Jaw enforcement officer shall be completed within sixty days.” (Emphasis added.) Razor notes that his investigation on June 9, 2003, and concluded with his termination on September 18, 2003. Razor argues that the term “investigation” in La. R.S. 40:2531B(7) should be read broadly to include “investigation and discipline,” not just investigation. As the period from the beginning of the investigation on June 9, 2003, through the time of his termination on September 18, 2003, exceeds sixty days, it does not meet the mandatory requirements of La. R.S. 40:2531B(7). The NOPD counters that the sixty day limit set forth in La. R.S. 40:2531B(7) should be deemed advisory in nature, rather than mandatory or imperative, relying on Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. Bannister involved an agency rule that the NOPD contends is analogous.

While we note that this Court recently rejected a similar argument made by the NOPD based on Bannister in Davis v. New Orleans Police Department, 04-1023 (La.App. 4 Cir. 2/2/05), 899 So.2d 37, we find no evidence in the record that Razor raised this issue in any of the proceedings below, i.e., Razor attempts to raise the issue of the sixty day time limit for investigations set forth in La. R.S. 40:2531B(7) for the first time in his appellate brief to this Court.

Appellate courts generally may not consider any question which has not been determined by the court of original jurisdiction. Durmeyer v. Streiffer, 215 La. 585, 41 So.2d 226 (1949). Issues not urged in the court below or raised by the pleadings cannot be considered on appeal. Crichton v. Lee, 209 La. 561, 25 So.2d 229, 235 (1946). The general rule is that appellate courts will not consider issues raised for the first time on appeal. Spaht v. Sewerage and Water Bd. Of City of New Orleans, 02-2125, p. 5 (La.App. 4 Cir. 7/2/03), 851 So.2d 1242, 1245; Landry v. Latter, 00-0100 (La.App. 4 Cir. 12/27/00), 780 So.2d 450. Accordingly, we will not consider Razor’s arguments concerning the sixty day period set forth in La. R.S. 40:2531B(7).

Razor also complains that the Civil Service Commission committed manifest error in finding that the appointing authority had “reasonable suspicion” in ordering him to submit to a drug test.

Again we note, Razor does not challenge the results of his drug test. Nor does he challenge the legality of the search warrant that led to the discovery of the cocaine residue which in turn was a major factor used by the NOPD to justify its “reasonable suspicion” drug test that led to Razor’s suspension and eventual termination by the NOPD. The crux of Razor’s argument concerning the “reasonable suspicion” drug test is that the cocaine residue discovered in his vehicle pursuant to the search warrant was not sufficiently suspicious to justify requiring him to undergo drug testing.

Civil Service Rule 5, Paragraph 9.12 provides that:

An employee shall be required to participate in the substance abuse screening procedure if there exists reasonable suspicion (Category III) to believe that the employee’s fitness for duty is questionable based upon the following criteria:
(a) Any observable, work related behavior or similar pattern of conduct that appears to be abnormal, erratic or similar pattern of conduct that appears to be abnormal, erratic or otherwise not in conformance with acceptable City policy.
(b) Any observable, work related behavior or similar pattern of conduct that indicates signs of impairment in normal sensory and/or motor body functions.
(c) Any articulable facts or evidence that indicates possible substance abuse on the job.
|7(d) Any information or evidence that warrants, or emanates from, an authorized investigation of possible drug related activity by a specific individual or group.
(e) Any pattern of alcohol and/or drug related behavior, conduct or activity that is violative of municipal, state or federal law.

The same standards are set forth in the New Orleans Police Department Operations Manual, Chapter 13.21(6). There is no evidence in the record concerning erratic or abnormal behavior on Razor’s part. Therefore, criterion “(a)” above is not applicable. The NOPD ■ does not contend otherwise. There is' no evidence in the record of any signs of impairment in normal sensory and/or motor body functions. Therefore, criterion “(b)” above- is not applicable. The NOPD does not contend otherwise. There is no evidence in ■ the record of any pattern ,of alcohol and/or drug related behavior, conduct or activity. Therefore, criterion “(c)” above is not applicable. The . NOPD does not contend otherwise. There. is no evidence in the record, of any articulable facts or evidence that indicates possible substance abuse on the job. The NOPD does not contend otherwise. Therefore, criterion “(e)” above is not applicable.

Accordingly, this appeal must focus on whether reasonable suspicion existed to trigger a random drug test under criterion “(d)” concerning the existence of evidence emanating from an authorized investigation of possible drug related activity.

Initially, we note that the Fourth Amendment of the United States Constitution prohibition against unreasonable searches and seizures by government officials is applicable to the states via the Fourteenth Amendment. State v. Church, 538 So.2d 993 (La.1989); George, supra. The Louisiana Constitution [¿protects against unreasonable invasions of privacy as well as unreasonable searches and seizures. Church, supra; George, supra; La. Const. art. I, Sec. 5.

Furthermore, the collection and subsequent analysis of biological samples for the purpose of drug testing with government encouragement, endorsement, and participation are Fourth Amendment searches. Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); George, supra. Therefore, such searches must -meet the reasonableness requirements of the Fourth Amendment. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).

Factors to be considered in determining whether reasonable suspicion exists to warrant a non-random drug test include:

1. the nature of the tip or information;
2. the reliability of the informant;
3. the degree of corroboration; and
4. other facts contributing to suspicion or lack thereof.

Safford v. Department of Fire, 627 So.2d 707 (La.App. 4 Cir.1993); Fraternal Order of Police, Lodge No. 5 v. Tucker, 868 F.2d 74, 78 (3rd Cir.1989); Banks v. Department of Public Safety and Corrections, 598 So.2d 515, 519 (La.App. 1 Cir.1992).

It is reasonable for a governmental employer to order an employee to submit to a non-random drug test on the basis of individualizéd suspicion in certain circumstances. George v. Department of Fire, 93-2421, p. (La.App. 4 Cir. 5/17/94), 637 So.2d 1097, 1102. In both Banks and Tucker, supra; the employer suspicion originated from an unknown informant. Such a source is recognized as unreliable and the degree of corroboration is an important factor. In George, supra, the source of the information came from law enforcement officers. The court ruled that, unlike anonymous informants with questionable reliability, information from law enforcement officers is reliable by nature. Id., 637 So.2d at 1103.

The Civil Service Commission findings take into account the questionable nature of the information supplied by Hamilton, noting that “the tip came from a' drug dealer.” However, the Civil Service Commission findings went on to recognize that in view of the questionable nature of Hamilton’s tip, “the Appointing Authority [NOPD] decided to obtain a search warrant to determine whether Mr. Hamilton’s information could be corroborated.” It was pursuant to this warrant that the cocaine residue was discovered in the police vehicle used by Razor that led to his suspension and eventual dismissal. . This leads to the next and all-important finding by the Civil Service Commission:

Lt. Russell Vappie testified that .he ordered the. drug screen based upon reasonable suspicion because finding the cocaine in the Appellant’s [Razor’s] vehicle did in fact corroborate the tip received from Hamilton.
The Appointing Authority ■ acted prudently. Mr. Hamilton’s information standing alone was not reliable, and could not form the basis for a reasonable suspicion drug test. However, police officers provided additional reliable information that corroborated Mr. Hamilton’s claim.

This Commission finding is supported by Lieutenant Russell Yappie’s testimony before the hearing officer:

As a result of execution of those warrants for the vehicle and for the residence, inside of the police vehicle’s glove compartment, I found what appeared to be white powdered residue in the glove box contained in a clear plastic cellophane envelope.
[1(And as a result of the combination of the allegation that the officer had taken drugs from the scene, the fact that I found this ■ residue in the glove box, which is inconsistent with department policy and procedures about drugs or whatever, I felt comfortable in .asking or ordering Officer Razor to submit to a suspicion test as it relates to the department.
Q. Let me ask. you: What — since you mentioned the policies and procedures, what are the policies and procedures in the transportation of narcotics?
A. The policies and procedures that evidence confiscated from the scene should be brought to the property and evidence room and recorded as either property or evidence. It shouldn’t'be left in the vehicle unattained — unattended or just lying around.

This is consistent with the. testimony given by Sgt. Foy before the.hearing officer when he was asked if narcotics officers should have narcotics wrappers in their cars:

A. They should not.
Q. They should not. Why do you say that?
A. What do you mean by stuff, narcotics?
Q. Wrappers that they may have had . narcotics in it.
A. They should not. I have been a supervisor for the task force that made- numerous narcotics arrests. If narcotics is seized off anybody, it and all of its packaging should be placed on the books. ■ ■ - . '
MR. TERVALON:
If you find narcotics and you can’t arrest somebody for it, you still turn it in and write up a miscellaneous report? ‘ SERGEANT FOY:
Right.
BY MS. PARENT:
|nQ. It should not be, but according to your experience, everybody followed that rule, right?
A. Yes. If they work for me, they follow that rule.
MR. TERVALON:
But we do, Sergeant, from time to time, we do find guns and narcotics in the back seat of cars that should not be there.
SERGEANT FOY:
Based on neglect and should not be there.
But, when it happens, it happens and it is in the rear seat where the perpetrator has usually been seated and been secreted there where it has not been found by the arresting officer. That’s the most common occurrence, not in the glove compartment.
MR. TERVALON:
If you transport somebody, you pull out the seat before and pull it out after?
SERGEANT FOY:
Every time.
MR. TERVALON:
Every single time.
SERGEANT FOY:
Every single time.

Thus, the Commission’s finding that reasonable suspicion existed to justify Razor’s non-random drug testing was not based on the admittedly questionable accusations of Hamilton, but on the fact that those accusations were corroborated by the finding of cocaine residue in his car and Lt. Vappie’s testimony that the finding of the residue was corroborative of Hamilton’s accusations. Therefore, all of Razor’s arguments concerning the unreliable nature of Hamilton’s story become | ^irrelevant once the cocaine residue is discovered and Lt. Vappie testified that it corroborated Hamilton’s story. Likewise, Razor’s attack on the role played by Officer Payne (whom he describes as terminated and discredited) during the time Hamilton was arrested is irrelevant as the actions of Officer Payne of which Razor complains all occurred prior to the issuance of the warrant and the finding of the cocaine residue in Razor’s vehicle. In other words, once the warrant is issued without challenge and the search is conducted without challenge resulting in the discovery of the cocaine residue, everything in the process that Razor complains of that occurred prior to these events becomes irrelevant.

Razor also argues that other police officers had access to his vehicle, so that the discovery of cocaine residue in his vehicle did not necessarily mean that he was the source of that residue. This argument might have merit were the standard for a non-random drug test “beyond a reasonable doubt.” However, the standard is merely “reasonable suspicion.” Reasonable suspicion is a lesser standard than probable cause. State v. Washington, 99-1111 (La.App. 4 Cir. 3/21/01), 788 So.2d 477; State v. Cooper, 37-472 (La.App. 2 Cir. 10/23/02), 830 So.2d 440; State v. Jones, 01-177 (La.App. 5 Cir. 10/17/01), 800 So.2d 958;

Razor notes that Officer Payne had control of Hamilton while Hamilton still had the heroin in his possession, but Officer Payne was never investigated. The fact that there may have been a basis for investigating Officer Payne concerning the missing heroin which was never acted upon, does not imply lack of reasonable suspicion for testing Razor having found cocaine residue in the glove compartment of his car.

Based on the circumstances presented in this case, we cannot say that the hearing officer or the Commission were manifestly erroneous in their findings.

| ^Accordingly, we conclude that the NOPD established the existence of reasonable suspicion to order Razor to submit to a drug test. The findings of the Civil Service Commission establish the efficacy of the drug test, which results Razor does not challenge. Therefore, we find that the decision of the Civil Service Commission to sustain Razor’s termination was not arbitrary, capricious, or an abuse of discretion.

For the foregoing reasons, the judgment of the Civil Service Commission is affirmed.

AFFIRMED


source: Caselaw Access Project

author: MAX N. TOBIAS, Jr., Judge. ARMSTRONG, C.J.,

license: Public Domain

text:
    Warren L. REUTHER, Jr., et al. v. James E. SMITH, Jr., et al.
    No. 2005-CA-0794.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2006.

      Randall A. Smith, Douglas S. Scotti, Smith & Fawer, L.L.C., New Orleans, Counsel for PlaintiffAppellant, Warren L. Reuther, Jr.
    Robert G. Harvey, Sr., Kelly A. Loisel, Robert G. Harvey, Sr., A.P.L.C., W. Patrick Klotz, Klotz & Early, New Orleans, Counsel for Defendant/Appellee.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge MAX N. TOBIAS, Jr.)
   MAX N. TOBIAS, Jr., Judge.

_JjWarren L. Reuther, Jr. (“Reuther”), the plaintiff herein, filed the instant appeal from a judgment finding him in contempt of court. After reviewing the record and applicable law, we reverse the trial court and set aside the judgment.

On 1 November 2001, Reuther filed suit for wrongful termination against James E. Smith, Jr. (“Smith”), his business partner’s son, Reuther’s nephew and then lawyer. On 4 November 2004, Smith filed a motion for contempt of court, complaining that Reuther had violated a preliminary injunction entered on 4 April 2002, and modified on 21 July 2004, which prohibited Reuther from acting as an agent of certain named hospitality enterprise corporations. The motion was filed by Smith as president of the named corporations, and not on behalf of himself personally. In connection with the motion for contempt, Smith also filed a motion to expedite the hearing, in response to which the trial court set a 2 December 2004 | ¿hearing date. The record does not reflect the date the motions were served on Reuther.

The preliminary injunction dated 4 April 2002, was narrowly drawn, stating:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioners’ Application for Preliminary Injunction is here GRANTED restraining, enjoining and prohibiting Defendant, Warren L. Reuther, Jr., his agents, employees, and all other persons, firms, or corporations acting or claiming to act on his behalf, from using the corporate stationary, from using the title of chief executive officer and from acting as an agent of the Corporations in any way without the approval of the Board of Directors of the Corporations, including with regard to the affairs of Shreveport Paddlewheels, L.L.C.

The preliminary injunction was modified on 31 July 2004, to prohibit Reuther from performing additional acts, repeating the prohibition of acting as an agent of the corporations in anyway without prior approval of the Board of Directors of the corporations.

The basis of the motion for contempt concerns a telephone call allegedly made by Reuther on 27 October 2004, to a fuel supplier of New Orleans Tours. The motion contends that Reuther acted as a representative of New Orleans Tours as well as New Orleans Paddlewheels during the conversation, in violation of the preliminary injunction.

|3On 2 December 2004, the trial court heard the matter. While Reuther did not file an opposition to the motion, he was prepared to present live testimony at the expedited trial. However, the trial court prevented Reuther from presenting any evidence and did not allow his attorney to present argument on his client’s behalf, because an opposition had not been filed to the contempt motion. The only evidence presented by Smith in support of the motion was two affidavits. At the conclusion of the matter, the trial court found Reuther in contempt of court and assessed him a $15,000.00 fine to be paid directly to Smith plus attorney’s fees, although no proof of attorney’s fees was ever presented to the court. The judgment ultimately signed by the court awarded Smith the sum of $2,500.00 in attorney’s fees. The trial court denied a subsequent motion for new trial filed by Reuther on 10 January 2005.

Reuther has listed seven assignments of error. These are:

1. It was reversible error for the trial court to grant Smith’s motion for contempt without evidence or a trial.
2. It was reversible error for the trial court to grant Smith’s motion for contempt when the plaintiff did not violate the trial court’s orders.
3. It was reversible error for the trial court to grant relief for which Smith did not pray.
4. It was reversible error for the trial court to order a fine for contempt be paid to a litigant rather than to the court.
5. It was reversible error for the trial court to order the plaintiff to pay a fine that constitutes 15 times the maximum allowed by law.
6. It was reversible error for the trial court to order the plaintiff to pay attorney’s fees for contempt when the law does not allow them.
|47. It was reversible error for the trial court to deny the plaintiffs motion for new trial for the reasons stated.

Contempt of court proceedings in civil cases are governed by La. C.C.P. art. 221, et seq., which defines contempt as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” See Lang v. Asten, Inc., 04-1665 (La.App. 4 Cir. 3/30/05), 900 So.2d 1031. The Code provides for two kinds of contempt, direct and constructive. Direct contempt of court is defined in La. C.C.P. art. 222 as “one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.” Constructive contempt is defined in La. C.C.P. art. 224 as “any contempt other than a direct one” and the article lists the following act, which constitutes a constructive contempt of court: the “wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” La. C.C.P. art. 224(2). The burden of proof in a civil contempt proceeding is by a preponderance of the evidence and appellate review is the manifestly erroneous standard. Id. at p. 12, 900 So.2d at 1039. See also Davis v. Harmony House Nursing Home, 35,080 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, writ denied, 01-3162 (La.2/22/02), 810 So.2d 1143.

In Dauphine v. Carencro High School, 02-2005 (La.4/21/03), 843 So.2d 1096, the Supreme Court stated:

A contempt of court proceeding is either criminal or civil, which is determined by what the court primarily 1 ¡¡seeks to accomplish by imposing sentence. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). In a criminal contempt proceeding, the court seeks to punish a person for disobeying a court order, whereas in a civil contempt proceeding, the court seeks to force a person into compliance with a court order. State in the Interest of R.J.S., 493 So.2d [1199 (La.1986)] at 1202 and n. 7 (citing Shillitani, 384 U.S. at 364, 86 S.Ct. 1531). In the instant case, the object of the proceeding was to determine whether Drs. Easton and Aguillard should be punished for willfully disobeying the court’s May 18, 2002 order, thus it is a criminal contempt proceeding.
Criminal contempt is a crime, and the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal proceeding against conviction of a crime except upon proof beyond a reasonable doubt of every fact necessary to constitute the contempt charge. State in the Interest of R.J.S., 493 So.2d at 1202. On appellate review of criminal contempt, the reviewing court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every element of the contempt charge was proved beyond a reasonable doubt. Id.
Willful disobedience of a court order requires a consciousness of the duty to obey the order and an intent to disregard that duty. Id. at 1203. The purpose of charging and convicting a defendant for criminal contempt is vindication of the public interest by punishment of contemptuous conduct. Id. (citing R. PERKINS, CRIMINAL LAW 533 (1969)). Therefore, in order to constitute willful disobedience necessary for criminal contempt, the act or refusal to act must be done with an intent to defy the authority of the court. Id. (citing E. DANGEL, CONTEMPT § 171 (1939)).
General criminal intent “is present ... when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” [Boldface supplied for emphasis.]

Id. at 14-15, 843 So.2d at 1107-08.

La. C.C.P. art. 225 requires a trial of a constructive contempt allegation:

A. Except as otherwise provided by law, a person charged with committing a constructive contempt of | ficourt may be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt and punished accordingly. The rule to show-cause may issue on the court’s own motion or on motion of a party to the action or proceeding and shall state the facts alleged to constitute the contempt. A person charged with committing a constructive contempt of a court of appeal may be found guilty thereof and punished therefor after receiving a notice to show cause, by brief, to be filed not less than forty-eight hours from the date the person receives such notice why he should not be found guilty of contempt and punished accordingly. [Emphasis added.]

Punishment for contempt of court is found in La. R.S. 13:4611, which provides in pertinent part:

(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts, and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
* * *
(b) For disobeying or resisting a lawful retraining order, or preliminary or permanent injunction, by a fine of not more than one thousand dollars, or by imprisonment for not more than twelve months, or both[.]

The matter before the trial court concerned an allegation of constructive criminal contempt. Smith contends that Reuther violated the court’s preliminary injunction by making a telephone call to Smith’s business associates and acting as an agent on behalf of the hospitality enterprise corporations. Thus, pursuant to article 225, the trial court was required to hold a trial and receive evidence.

As this case involves criminal contempt, Reuther was entitled to confront and cross-examine the witnesses against him. La. Const, art. I, § 16. La. C.E. art. 611(B) provides that a witness may be cross-examined on any matter relevant to any issue in the case. Due process affords a defendant the right of full 17confrontation and cross-examination of the witnesses testifying against him. State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201-02. The trial court has discretion to control the extent of the examination of witnesses as long as it does not deprive the defendant of his right to effective cross-examination. State v. Hawkins, 96-0766, p. 6 (La.1/14/97), 688 So.2d 473, 479; State v. Huckabay, 00-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, writ denied, 02-0703 (La.11/1/02), 828 So.2d 564. Eviden-tiary rules may not supersede the fundamental right to present a defense. Id.

Generally, an affidavit is inadmissible as hearsay. King’s Joint Venture v. Marino, 02-0847, p. 4 (La.App. 4 Cir. 9/25/02), 827 So.2d 521, 524, citing Arkla, Inc. v. Maddox and May Bros. Casing Service, Inc., 624 So.2d 34, 36 (La.App. 2 Cir.1993). In the rare instances where an affidavit is acceptable as a substitute for testimony, an affidavit must be based on personal knowledge, must set forth only facts admissible in evidence, and must show that the affiant is competent to testify to the matters contained therein. Arkla, Inc., 624 So.2d at 36 (citations omitted). A sworn affidavit is hearsay and is not competent evidence unless its use is specifically authorized by statute. Board of Commissioners of Port of New Orleans v. Louisiana Commission on Ethics for Public Employees, 416 So.2d 231, 238 (La.App. 1 Cir.), writ denied, 421 So.2d 248 (La.1982); see also Pyburn v. Walle Corporation, 454 So.2d 1128, 1130 (La.App. 4 Cir.1984).

In the recent opinion of Lang v. Asten, Inc., 05-1119 (La.1/13/06), 918 So.2d 453, the Supreme Court granted the writ application .of an insurance company that had been held in constructive contempt for failing to obey an order requiring, that it provide its purported insureds a “full and complete defense” while the insureds’ motion for new trial and then their appeal were’ | spending and unresolved. The Court reaffirmed prior jurisprudence by quoting La. C.C.P. art 225(A), which requires a trial before a person can be found guilty of, and punished for, a constructive contempt of court.

After reviewing the record, we find that the trial court did not hold a trial or even an evidentiary hearing on the motion for constructive contempt. In addition, the affidavits, even if we were to find them admissible, which we do not, fail to allege that Reuther represented that he was acting as an agent for any of the hospitality enterprise corporations.

The first affidavit was 'executed by David B. Hecker (“Hecker”), the chief financial officer for Retif Oil & Fuel, L.L.C. (“Retif’), who stated that on 27 October 2004, he received a telephone call from Reuther inquiring as to the balance owed by New Orleans Tours and whether it was making payments on its account. Reuther advised Hecker that New Orleans Tours was experiencing financial problems. Hecker contacted Bob Gaudet (“Gaudet”), Retifs sales manager, and told him of the conversation. He then told Gaudet that it was his opinion that Reuther was formulating a list of creditors for bankruptcy purposes. During a subsequent telephone call, Reuther also inquired about New Orleans Paddlewheels’ accounts receivable, but Hecker told him that Retif did not sell to that company. Reuther told Hecker that current management was “running the company into the ground.” The affidavit does not show or prove that Reuther violated the preliminary injunction.

Erik K. Windstein (“Windstein”), the general manager of Airport Shuttle and the risk manager of New Orleans Hospitality Companies, executed the second affidavit. On 28 October 2004, he received a telephone call from John Manuel, a New Orleans Tours and Airport Shuttle mechanic, . who told him that their fuel | asupplier, Retif, shut off the fuel pumps. Windstein called Gaudet and was .told that the CFO for Retif [Hecker] had received a call from Reuther, wherein Reuther inquired about the accounts and receivables of New Orleans Tours. Gaudet also told Weinstein that Reuther informed Hecker that New Orleans Paddlewheels was filing for bankruptcy. Again, the affidavit does not show or prove that Reuther violated the preliminary injunction.

Because no proof exists in the record demonstrating that Reuther violated the preliminary injunction and, thus, in contempt of court, we reverse and set aside the judgment of the trial court. While Reuther may have at some level violated the spirit of the preliminary injunction, the injunction is quite specific as to what constitutes a forbidden act. The acts described do not violate the clear language of the injunction as written. Accordingly, we remand the matter to the court below for further proceedings.

REVERSED AND REMANDED.

ARMSTRONG, C.J., concurs.

ARMSTRONG, C.J.,

Concurring.

Li respectfully concur. However, in reading the record I do not see that the trial court prevented the plaintiff-appellant, Mr. Reuther, from calling witnesses or presenting evidence. The trial judge stated:

You can’t argue. Sit down. Just have a seat. Under local rules you’re supposed to file a memo in opposition within eight days. You didn’t do it. You forfeit your right to argue, to oral argument, which ■is what you were starting to do.

The trial judge unquestionably was alluding to Rules for Civil (Except for Family, Juvenile or Domestic Relations) Proceedings in District Courts — Rule 9.9 which states in pertinent part that:

(b) A party who opposes an exception or motion must concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing....
(d) Parties who fail to, comply with paragraphs (a) and (b) of this rule may forfeit the privilege of oral argument.

As quoted above, Rule 9.9(d) states that the party who fails to file1 an opposition eight days in advance of the' hearing may forfeit the right to oral argument — it does not state that the party forfeits the right to call witnesses or present evidence. Therefore, while Rule 9.9 might empower the trial court |¡>to prevent a party from arguing, it does hot provide the trial court with - authority to prevent a party from presenting such evidence as is contemplated under La. C.C.P. art. 225 calling for a trial of a. constructive contempt charge. I note that at one point in-addressing counsel -for the ■ plaintiff, the trial: court stated that': ‘You could have called witnesses here.” I believe that based on the record the trial court should be presumed to have limited its -ruling to denying the plaintiff the right to oral argument. Argument is not evidence. Maurice v. Prudential Ins. Co., 02-0993, p. 7 (La.App. 4 Cir. 10/23/02), 831 So.2d 381, 386.

Additionally, I note that while ’the plaintiff argues in his brief to this Court that he was prevented from offering any evidence, he does not say what evidence he might have offered had be had the chance to do so or what he sought to .prove thereby, i.e., he makes no showing or argument of-prejudice.

However, I am compelled to agree with the result reached by the majority on other grounds, and, therefore, -respectfully concur.

      . Reuther also filed suit against the various entities in which he held stock and of which Smith was the president. These entities are: Bayou Sauvage Swamp Tours, Inc., Airport Holdings, Inc., Airport Shuttle Colorado, Inc., Airport Shuttle, Inc. ("Airport Shuttle”), Chicory Building, Inc., Delta Transit, Inc., Destination Management, Inc., Hospitality Enterprises, Inc., Lodging, Inc., New Orleans International Cruise Terminal, Inc., New Orleans Paddlewheels, Inc. ("New Orleans Pad-dlewheels”), New Orleans Tours, Inc. ("New Orleans Tours”), On The Town, Inc., RSC Management, Inc., and Visitor Marketing, Inc. For the purposes of this opinion, we refer to all the defendants collectively as "Smith.”

      .These acts include:
      1. Using corporate stationary or using stationary identical to corporate stationary;
      2. From using the title of "Chief Executive Officer”, or any other office or director title;
      3. From acting as an agent of the corporations in any way without prior approval of the Board of Directors of the Corporations;
      4. From interfering in any way with the Corporations’ banking relationships, in-eluding, but not limited to asserting any authority to withdraw funds or direct any actions regarding the corporations’ accounts;
      5. From intervening in any way into the President of the Corporations' authority to open bank accounts, close bank accounts, and/or designate signatory power over corporate banking accounts; and
      6. From entering corporate properties without prior approval.

      . It appears that the most derogatory information to Retif was that New Orleans Paddle-wheels was filing for bankruptcy. However, a close reading of the affidavits reveals that the bankruptcy issue was only an opinion of Hecker; Reuther never stated that New Orleans Paddlewheels would in fact be filing for debtor relief.


author: JAMES F. MCKAY III, Judge.

text:
    Donald DOMINIO v. THE FOLGER COFFEE COMPANY, XYZ Insurance Company, ABC Individually, and DEF.
    No. 2005-CA-0357.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2006.

      Keith Couture, Mandeville, Frank Larre’, Gretna, Counsel for Plaintiff/Appellant.
    Isaac H. Soileau, Jr., Logan & Soileau, LLC, New Orleans, Counsel for Interve-nor/Appellant, T.T.C. Illinois, Inc.
    Dominic J. Gianna, Marianne Garvey, Alan Dean Weinberger, Middleberg Riddle & Gianna, New Orleans, Jonathan C. Augustine, Middleberg Riddle & Gianna, Baton Rouge, Counsel for Defendant/Appel-lee, The Folger Coffee Company.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   JAMES F. MCKAY III, Judge.

|, On June 17, 1993, Donald Dominio was injured at the Folger Coffee Company’s warehouse when a forklift driven by a Folger employee suddenly backed up and Mr. Dominio tripped while he was getting out of its way. At the time of the accident, Mr. Dominio was employed as a truck driver by T.T.C., Inc., who had loaned him to Arcadian Motor Carriers, Inc. and he was engaged in the process of loading and transporting coffee.

Mr. Dominio brought suit in tort against Folger. T.T.C. intervened in the suit, seeking to recover the worker’s compensation benefits it paid to or on behalf of Mr. Dominio. Pursuant to a scheduling order signed by all parties, trial in this matter was set for November 8, 2004.

On September 13, 2004, Folger filed a motion for summary judgment contending that Mr. Dominio was its statutory employee. The trial court set the rule to show cause for a contradictory hearing on October 8, 2004. However, none of the parties received notice of this date. The hearing was reset for October 29, 2004. On October 28, 2004, both Mr. Dominio and T.T.C. filed motions to ^continue on the grounds that the motion for summary judgment was neither set nor served within the requirements found in the Code of Civil Procedure. On October 29, 2004, the district court reset the hearing on Folger’s motion for summary judgment for November 5, 2004. With leave of court, both the plaintiff and the intervenor filed their oppositions to Folger’s motion for summary judgment and the intervenor further filed a motion to strike affidavits with incorporated memorandum and additional objections to hearing as a result of the hearing being set less than the procedurally required fifteen days. The trial court heard the matter on November 5, 2004 and granted Folger’s motion for summary-judgment on November 12, 2004. It is from this judgment that Mr. Dominio and T.T.C. now appeal.

The appellants raise the following assignments of error: 1) the district court erred in granting the Folger Coffee Company’s motion for summary judgment and in finding that the Folger Coffee Company is the statutory employer of Mr. Dominio because the facts used by the district court to arrive at its conclusions do not support the totality of circumstances analysis articulated by Kirkland v. Riverwood International USA, Inc., 95-1830 (La.9/13/96), 681 So.2d 329; 2) the district court erred in finding that Mr. Dominio’s work as a truck driver was non-specialized and thus part of the Folger Coffee Company’s business operations; 3) the district. court erred in denying T.T.C.’s and Mr. Dominio’s motions to strike affidavits and/or portions of affidavits and exhibits supporting Folger’s motion for summary judgment and thus basing, in part, its granting of Folger’s motion for |ssummary judgment on improper affidavits or exhibits or parts thereof that are neither credible nor competent and, as a matter of law, cannot support a motion for summary judgment pursuant to La. C.C.P. Art. 967; 4) the district court erred in hearing a motion for summary judgment, which is a summary proceeding, not properly set within the appropriate time period pursuant to La. C.C.P. Art. 966 nor properly served on appellants herein pursuant to La. C.C.P. Arts. 2594, 966 and 1314; ' and 5) the district court erred in issuing a judgment on a motion for summary judgment seventy-two hours before the start of trial in violation of La. C.C.P. Art. 966(D). Essentially, the issue before this Court is whether summary judgment was properly granted.

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. John Jay Esthetic Salon, Inc. v. Preskitt, 2004-1378 (La.App. 4 Cir. 2/23/05), 898 So.2d 538. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, the party opposing the 14motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.” La. C.C.P. art. 966(C).

Although there are some procedural difficulties with the time frame with which the trial court heard the motion and granted summary judgment, this is not in and of itself grounds for reversal. See Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409, 2000-2410 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, 349.

There are, however, other serious problems with the trial court’s judgment. The trial court mistakenly relied upon the affidavits of Melinda Umbarger and Bart Blackston. Both of these affidavits were not necessarily based on personal knowledge. Both affidavits state that they “are based , on information transmitted by persons with personal knowledge at the time of the events described in this affidavit.” Louisiana Code of Civil Procedure Article 967 requires that affidavits be made on “personal knowledge.” Personal knowledge encompasses only those facts which the affiant saw, heard or perceived with his own senses. Roberts v. Orpheum, 630 So.2d 914 (La.App. 4 Cir.1993).

In Kirkland v. Riverwood Int’l USA, Inc., 95-1830 (La.9/13/96), 681 So.2d 329, the Louisiana Supreme Court enumerated eight factors to be considered in determining whether a statutory employment situation exists. They are: (1) the nature of the business of the alleged principal; (2) whether the work was specialized or non-specialized; (3) whether the contract work was routine, customary, ordinary or usual; (4) whether the alleged principal customarily used phis own employees to perform the work, or whether he contracted out all or most of such work; (5) whether the alleged principal had the equipment and personnel capable of performing the contract work; (6) whether those in similar businesses normally contract out this type of work or whether they have their own employees perform the work; (7) whether the direct employer of the claimant was an independent business enterprise who insured his own workers and included that cost in the contract; and (8) whether the principal was engaged in the contract work at the time of the incident. Id. at 336-337. Furthermore, the Supreme Court cautioned that this totality of the circumstances inquiry is frequently difficult to accomplish on a motion for summary judgment which requires a showing that there is no genuine issue of material fact that would defeat entitlement to judgment as a matter of law. Id. at 337.

In the instant ease, the district court defined Folger’s business as the manufacturing, shipping, distribution and sale of coffee. The district court also believed that Mr. Dominio’s work was not specialized, although it recognized that he held a commercial driver’s license. Mr. Dominio’s work was also found to be routine, customary or usual. The district court did note that Folger contracted out all of this work. The district court concluded that no evidence was presented as to whether Folger had equipment and personnel capable of performing the contract work. Nor was any evidence presented concerning whether those in similar businesses normally contract out this type of work or whether they have their own employees perform the work. The district court noted that the direct employer of LMr. Dominio was T.T.C., an independent business enterprise that insured its workers. The district court also determined that Mr. Dominio was engaged in the contract work at the time of the incident.

The district court defined the nature of the defendant’s business but did not delve into the nature of T.T.C.’s or Arcadian’s businesses. In Oubre v. Union Carbide Corp., 99-63 (La.App. 5 Cir. 12/15/99), 747 So.2d 212, the Fifth Circuit indicates that the nature of the direct employer’s business must also be considered. Although the district court concluded that Mr. Dominio’s work was routine, customary or usual, no evidence was presented as to whether Folger had personnel capable of performing the work or how similar businesses perform this type of work. Accordingly, this presents us with an unanswered question. The fact that Mr. Domi-nio possessed a commercial driver’s license also creates an issue as to whether his work was specialized. As such, genuine issues of material fact exist in this case. Under the totality of the circumstances inquiry espoused by Kirkland, summary judgment was not appropriate in this case.

For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded to the court below.

REVERSED AND REMANDED.


author: MICHAEL E. KIRBY, Judge.

text:
    N-Y ASSOCIATES, INC. v. BOARD OF COMMISSIONERS OF the ORLEANS PARISH LEVEE DISTRICT. N-Y Associates, Inc. v. Board of Commissioners of the Orleans Levee District.
    Nos. 2004-CA-1598, 2004-CA-1986.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 2006.

      Kyle Schonekas, Maria Garcia Marks, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for Plaintiff/Ap-pellee.
    Gerard G. Metzger, Gerard G. Metzger, APLC, and Frank A. Milanese, Frank A. Milanese, PLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge LEON A. CANNIZZARO JR.).
   MICHAEL E. KIRBY, Judge.

Lin this breach of contract case, the Board of Commissioners of the Orleans Levee District (“Board”) appeals the trial court judgment in favor of plaintiff, N-Y Associates, Inc., in the amount of $521,279.00 plus interest, costs and attorney fees. N-Y Associates answered the appeal, requesting an award of additional attorney fees and costs incurred in the post-trial and appellate proceedings.

Prior to addressing the merits of this appeal, we will consider the Board’s motion to dismiss the plaintiffs answer to appeal. This motion argues that the answer is untimely. We disagree. This is a consolidated case with two judgments, one appealed under the number 2004-CA-1598 (awarding damages for breach of contract) and the other under 2004-CA-1986 (relating to attorney fees and costs.) The Board’s motion to dismiss refers to 2004-CA-1598, but the plaintiff only filed an answer to the appeal in 2004-CA-1986.

La. C.C.P. article 2133 states that an answer to an appeal must be filed no later than fifteen days after the return day or the lodging of the record whichever is later. The record in 2004-CA-1986 was lodged on November 18, 2004, and the [^answer was filed on November 23, 2004. Under La. C.C.P. article 2133, the answer is timely.

On June 16, 1994, plaintiff and the Board entered into a contract that called for plaintiff to perform certain professional engineering services related to the repair of a retaining wall at the Lakefront Airport in New Orleans. The contract stated that the retaining wall project would involve three phases: the study phase (Phase I), the design phase (Phase II), and the construction phase (Phase III). The contract specified the amount of compensation for the study phase, and further stated that compensation for the design and construction phases would be covered in a supplemental agreement to the contract. Each party to the contract had the right to terminate the contract after providing the other party with thirty days notice in writing, and after the Board paid the plaintiff for completed work.

The contract also stated that the project was subject to funding by the Federal Aviation Administration (“FAA”). On July 19, 1995, the Board passed a resolution regarding its goal of obtaining FAA funding for the rebuilding of the retaining wall. The Board authorized the issuance of a Request for Qualifications (“RFQ”) for solicitation of engineering firms to prepare plans and specifications in accordance with an FAA Advisory Circular. By letter dated July 28, 1995, the Chief Engineer for the Board, Mr. Stevan G. Spencer, notified plaintiffs President, Mr. Frank Nicoladis, that the Board was terminating the June 16, 1994 engineering agreement pursuant to the termination clause in the contract. In the letter, Mr. Spencer noted that the study phase of the project was 98.03% complete, and that |sthe remaining percentage owed to plaintiff would be released upon receipt of the final study report.

Plaintiff claims in its petition that it was informed that the RFQ advertisement was necessary in order to satisfy FAA requirements and thereby obtain FAA financing for the remaining phases of the retaining wall repair project. Plaintiff also claims that it was encouraged to resubmit its qualifications for the remainder of the project, which plaintiff did. The Board’s Ad Hoc Selection Committee ranked plaintiff number 1 out of the 11 firms that submitted proposals.

The Board adopted another resolution on September 20, 1995, noting that following the RFQ advertisement, the Ad Hoc Selection Committee presented an un-ranked list of the top five engineering firms meeting the criteria set forth by the Board. Plaintiff was one of the five firms on the list. The Board authorized a committee consisting of Board Commissioners Richard Sackett, Robert Ramelli and Mickey Easterling to review the qualifications of the five firms and make a selection for the next phase of the project “when the funding becomes available by September 22, 1995.” The committee selected Design Engineering, Inc. (“DEI”) for the project.

On November 10, 1995, plaintiff filed a petition for breach of contract against the Board, alleging that the Board’s termination of the June 16, 1994 contract was arbitrary, capricious, and in violation of contract law. Plaintiff further alleges that the Board terminated its contract with plaintiff to award the remaining work on the retaining wall project to a rival firm preferred by the Board, to the |4harm and prejudice of plaintiff. Plaintiff alleges that the Board violated its obligation to perform contracts in good faith as required by La. C.C. article 1983.

After a bench trial, the trial court rendered judgment in favor of plaintiff and against the Board in the amount of $521,279.00 plus interest from the date of judicial demand and costs of the proceedings. The court also awarded plaintiff attorney fees. Following a subsequent hearing, attorney fees in the amount of $160,611.45 were taxed against the Board along with certain fees and costs specified in the judgment. The Board appeals both judgments, and plaintiff answered the appeal regarding the award of attorney fees, requesting an increase in the award for fees and costs incurred in the post-trial and appellate proceedings.

In its reasons for judgment, the trial court found that the June 16,1994 contract included all three phases of the retaining wall repair project. The court also found that a preponderance of the evidence showed that the Board’s purpose of terminating its contract with plaintiff was to award the project to DEI for a reason other than obtaining FAA funding. Therefore, the court found that the Board terminated the contract in bad faith.

On appeal, the Board argues that the trial court erred in finding that the Board breached its contract with plaintiff, and in awarding damages and attorney fees to plaintiff. The Board argues that the June 16, 1994 contract only encompassed the study phase of the project. It claims that there was no agreement for plaintiff to perform the design and construction phases of the project because the contract did not specify the compensation for those phases. The Board claims |Bthat it had nothing more than an “agreement to agree” on the price of the design and construction phases, and therefore, there was no valid contract for plaintiff to perform this work. Plaintiffs response to this argument is that the contract encompassed all three phases, and that this is evidenced by the contract itself, the extrinsic evidence surrounding the execution and termination of the contract and the witness testimony.

As stated above, the trial court found that the contract authorized plaintiff to perform, all three phases of the project. The court noted that the first page of the contract provides that plaintiff was to perform “all necessary professional services” in connection with the. project defined as “Repair of East Side Retaining Wall.” The contract sets forth, in detail, the services required for each of the three phases. The trial court concluded that if there were no intent to include all three phases, the references to any phase other than the study phase could have been deleted from the contract by the Board prior to the contract’s execution.

The trial court found that although the fee. proposal attached to the contract encompassed. only the study phase, the evidence and testimony shows that, the fees for the design. and construction phases could not be specified prior to the completion of the study phase. The parties agreed in the contract that compensation for the design and construction phases would be covered in a supplemental agreement to the contract. The court concluded that the absence of fee proposals for the remaining phases does not provide a basis for determining that the remaining phases were not included in the June 16, 1994 contract.

|fiWe agree with the. trial court’s conclusion that the contract between plaintiff and the Board encompassed the study, design and construction phases. The wording of the contract its,elf strongly supports that conclusion. The contract states that plaintiff was being retained to perform “all necessary professional services” in connection with the repair of the retaining wall, and it includes a detailed list of the services required for all three phases. There would be no reason to include in the contract a delineation of..the services required for the design and construction phases of the project if those phases were not to be performed by plaintiff.

With regard to the contract only stipulating fees to be paid for the study phase, we are persuaded, as was the trial court, with testimony presented that these fees could not be determined prior to completion of the study phase. The inclusion of language stating that the fees for the design and construction phases would be set forth in a supplemental agreement to the contract further evidences the parties’ intention that plaintiff was to perform all three phases of the project. Additionally, in Article 8 of the contract, entitled “Payment,” references are made to the design and construction phases. Although specific compensation amounts are not mentioned, this Article discusses instructions for plaintiff to follow in order to be compensated for the design and construction phases. We find no merit in the Board’s argument that its contract with plaintiff encompassed only the study phase of the retaining wall project.

|7The Board also argues that it had the right to terminate the contract at any time, and for any reason or no reason. Article 16 of the contract, entitled “Termination or Suspension,” states, in pertinent part:

16.1 The terms of this Agreement shall be binding upon the parties hereto until the work has been completed and accepted by the Owner and all payments required to be made to the Engineer have been made; but this Agreement may be terminated under any or all of the following conditions:
* ⅛ *
16.1.5. By the Owner/Engineer upon thirty (30) days notice to the Owner/Engineer in writing and Owner paying fees due for completed work.

Although the parties agreed on the inclusion of this “termination at will” provision, the parties also had an obligation to assert their contractual rights in good faith. Louisiana Civil Code article 1983 requires that contracts be performed in good faith. Louisiana Civil Code article 1759 states that good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation. Thus, while it is undisputed that the Board (or plaintiff) had the right to terminate the contract at will, the question presented in this case is whether or not that right was exercised in good faith as required by the Civil Code.

Bad faith is not the mere breach of faith in not complying with a contract, but a designed breach of it from some motive of interest or ill will. Fertel v. Brooks, 2002-0846, p. 15, n. 12 (La.App. 4 Cir. 9/25/02), 832 So.2d 297, 306, n. 12 citing Williams v. Coe, 417 So.2d 426, 430 (La.App. 1 Cir.1982). The determination of whether a party to a contract acted in bad faith is a factual determination to be made by the trial court and therefore subject to the manifest error/clearly wrong standard of appellate review. Weeks v. T.L. James & Co., 626 So.2d 420, 425 (La.App. 3 Cir.1993), citing Rosell v. ESCO, 549 So.2d 840 (La.1989). Furthermore, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though this court may feel its own evaluations and inferences are as reasonable. Id. When findings are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact’s findings. Id. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

In this case, conflicting testimony was presented as to the Board’s reasons for terminating its June 16,1994 contract with plaintiff for engineering services in connection with the repair of the retaining wall at the Lakefront Airport. The Board presented the testimony of several witnesses, including some who were Board commissioners at the time of the termination of the contract. Those testifying on behalf of the Board stated that the contract with plaintiff had to be terminated, and a reselection process begun, in order to, obtain FAA funding for the design and construction phases of the project.

laThe plaintiffs main witness was Mr. Robert Harvey, who was the president of the Board at the time the contract at issue was executed and terminated by the Board. Mr. Harvey was no longer the president of the Board at- the time of trial in this matter. Mr. Harvey testified that other members of the Board decided to terminate the contract with plaintiff so that the contract for design and construction could be given to DEI, which in turn would give subcontract work to another company, C.S. Consultants. According to Mr. Harvey, one of the Board commissioners, Mr. Robert Ramelli, had a close relationship with the owner of C.S. Consultants, and wanted to send Board work to that company. Mr. Harvey said that contrary to the Board’s assertion that the contract with plaintiff had to be terminated, and a reselection process had to be implemented, to obtain FAA funding, this was a ruse used by the Board to mask the real reason for the termination, which, according to Mr. Harvey, was to give the remainder of the retaining wall'project to a politically preferred, but less qualified, engineering firm. Mr. Harvey testified that the award of the contract to DEI was a prearranged deal “from the get-go.”

Former Board Commissioners Ramelli, Sackett and Easterling presented testimony that conflicted with that of Mr. Harvey. All maintained that the reason for the termination of the plaintiffs contract, and the subsequent reselection process, was to obtain FAA funding for the project.

I,nIt is undisputed that plaintiffs contract -with the Board stated that the project was subject to FAA funding, and that the Board has consistently sought FAA funding for the project. Plaintiff claims that the Board knew it was not going to receive FAA funding when plaintiffs contract was terminated and when DEI was awarded the new contract for the design and construction phases. The trial court agreed with plaintiff on this issue, finding that the Board knew, the FAA would not fund the project when plaintiff was advised that its contract was being terminated in order to obtain FAA funding for the remainder of the project.

We disagree with the trial court’s finding that the Board knew there would be no FAA funding when it terminated its contract with plaintiff. The Board did not receive confirmation of that fact until 1997, two years after plaintiffs contract was terminated. In a September 15, 1997 memorandum to Commissioner Robert E. Smith Lupo, the Board’s Chief Engineer, Stevan Spencer, stated that the FAA had informed the Board “within the last two weeks” that funding would not be available because of the FAA’s position that the retaining wall project was “a maintenance project that is the responsibility of the owner to repair.”

However, even though we disagree with the trial court’s conclusion that the Board knew it would not get FAA funding when it terminated plaintiffs contract, the Board certainly had received very strong signals from the FAA that funding would not be forthcoming. But even assuming that the Board was still holding out realistic hope that it could obtain FAA funding, the record supports the trial court’s conclusion that this funding goal was not the Board’s actual reason for the In termination of plaintiffs contract. The court found that the Board terminated its contract with plaintiff to award the remainder of the retaining wall project to DEI for a purpose other than obtaining FAA funding. That other purpose, according to plaintiffs witness Mr. Harvey, was to give the contract to DEI because DEI was going to give subcontract work to a firm with personal connections to a Board commissioner.

As noted by the trial court, DEI was involved in the original construction of the retaining wall that subsequently failed and necessitated the repairs that are the subject of the contract at issue. The court also noted that evidence in the record shows that the U.S. Army Corps of Engineers complained about DEI’s work to such an extent that it threatened to secure design services elsewhere. In light of that evidence, the trial court apparently did not find credible the testimony offered by the Board that contracting with DEI was the Board’s best chance of securing FAA funding for the remainder of the retaining wall project. We agree with the trial court that the testimony in support of that position was not credible.

Similarly, we are not persuaded by the Board’s argument that Commissioner Ra-melli’s allegedly acrimonious relationship with DEI President Walter Baudier precludes a finding that DEI was a politically preferred firm to whom the Board wanted to award the remainder of the contract. According to the testimony of Mr. Harvey, the Board’s motivation in terminating its contract with plaintiff was to award the contract to DEI because DEI was going to give subcontract work to C.S. Consultants, which was owned by a friend of Commissioner Ramelli.

hsThe trial court was presented with conflicting testimony on the issue of the Board’s motivation in terminating plaintiffs contract. The court made a credibility call, and obviously determined that the testimony of Mr. Harvey was more credible than that of the witnesses testifying for the Board on that issue. The trial court’s credibility determination was reasonable. Furthermore, the court’s finding that plaintiffs contract was terminated in bad faith is supported by the record, and is not manifestly erroneous or clearly wrong. We also find no error in the trial court’s conclusion that the change in the Board’s composition after the termination of plaintiffs contract and subsequent awarding of the contract to DEI does not negate a finding of bad faith termination in this case.

Next, the Board argues that the trial court erred in its assessment of damages awarded to plaintiff. The Board claims that the plaintiffs calculation of damages improperly subtracts executive compensation and fringe benefits from variable costs, and would result in “a gigantic, unprecedented windfall” to plaintiff. On the issue of damages, the parties each presented testimony from a CPA. Plaintiff presented the testimony of Ms. Holly Sharp, and the Board offered the testimony of Mr. Kent Berger. The trial court accepted Ms. Sharp and Mr. Berger as experts in the calculation of damages.

In reasons for judgment, the trial court found that the testimony of Ms. Sharp was more persuasive on the issue of damages. However, the court found that plaintiff should recover only for profits lost as a result of the performance of the design phase by DEI, as the subsequent construction phase of the project was never h ¿performed. Ms. Sharp arrived at the figure of $521,279.00 as profits lost by plaintiff in not being able to perform the design phase of the retaining wall project. Ms. Sharp explained her methodology in her calculation of plaintiffs lost profits, and listed the documents that she reviewed prior to the rendition of her detailed report. Ms. Sharp listed the publications to which she referred on the subject of the calculation of lost profits, and the formula used by her in her calculations.

The Board argues that Ms. Sharp’s calculations are incorrect, and that the trial court should have instead adopted the calculations of its expert, Mr. Berger. The trial court evaluated the testimony of both experts and found Ms. Sharp’s testimony more persuasive on the issue of damages. This was a credibility determination that is not manifestly erroneous or clearly wrong. The trial court’s award of damages for lost profits on the design phase only is also not manifestly erroneous or clearly wrong.

Finally, the Board argues that the trial court erred in awarding attorney fees to plaintiff. We agree. As a general rule, attorney fees are not due and owing a successful litigant unless specifically provided for by contract or by statute. Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014, 1015 (La.1984). A suit for breach of contract, absent a specific contractual provision for attorney fees, is not an exception to this general rule. Willett v. Premier Bank, 97-187, p. 10 (La.App. 3 Cir. 6/4/97), 696 So.2d 196, 201. This rule applies even if the obligor is in bad faith in breaching the agreement. Lamonte v. Premier Sales, Inc., 00-298, 00-299, p. 8 (La.App. 5 Cir. 10/18/00 and 10/19/00), 776 So.2d 493, 497.

14In the instant case, the contract between plaintiff and the Board did not include a provision for the award of attorney fees, and we find no statutory authority for such an award in this case. Even though we find no error in the trial court’s conclusion that the Board acted in bad faith in terminating the contract, such a finding does not entitle the plaintiff to an award of attorney fees. Accordingly, we reverse the award of attorney fees to plaintiff.

Plaintiff also answered the appeal, arguing that it is entitled to an additional award of attorney fees and costs incurred in the post-trial and appellate proceedings in this matter. For the same reasons assigned for the reversal of the trial court’s award of attorney fees, we find no merit in plaintiffs claim for additional attorney fees. We also deny plaintiffs claim for additional costs.

For the reasons stated above, we reverse the trial court’s award of attorney fees to plaintiff. In all other respects, the trial court judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

      . See also Revision Comment to Louisiana Civil Code article 1770 in which the requirement of good faith is discussed specifically in the context of termination of “at will” contracts.

      . C.S. Consultants is also referred to in the record as CS & Associates! We will refer to this company as C.S. Consultants.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Kenneth E. SMITH.
    No. 2005-1355.
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2006.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Kenneth E. Smith.
    John F. DeRosier, District Attorney— Fourteenth Judicial District, ADA Carla S. Sigler, Lake Charles, LA, for Plaintiff/Ap-pellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hOn May 4, 2004, Defendant, Kenneth E. Smith (Smith), was convicted of armed robbery with a firearm in violation of La. R.S. 14:64 and La.R.S. 14:64.3. On September 3, 2004, Smith was sentenced to serve thirty years at hard labor without benefit of probation, parole, or suspension of sentence for armed robbery, and to five years at hard labor without benefit of probation, parole, or suspension of sentence for armed robbery with a firearm, with the two sentences to run consecutively.

Smith filed a motion for new trial on September 21, 2004, and a hearing on the motion was held on October 15, 2004. At that hearing, the trial court dismissed part of the motion based on objections by the State, and Smith was given thirty days to amend the remainder of the motion to comply with La.Code Crim.P. art. 894. An amended motion for new trial was filed on November 9, 2004, and eventually denied on April 6, 2005. The record indicated that on April 18, 2005 Smith filed a motion to reconsider sentence contending his sentence should be reduced to fifteen years. The record also indicates that the trial court signed the order denying the motion to reconsider sentence on April 14, 2005, though the filing date is listed as April 18, 2005. Smith then filed a motion and order for appeal on April 18, 2005, which the trial court granted.

Under La.Code Crim.P. art. 914, a motion for appeal must be made no later than thirty days after either the rendition of the judgment from which the appeal is taken, or the ruling on a motion to reconsider sentence filed pursuant to La.Code Crim.P. art. 881.1. Smith failed to file his motion for appeal within thirty days following sentencing, but did file his motion for appeal within thirty days of the ruling on his motion to reconsider sentence. However, pursuant to La.Code Crim.P. |aart. 881.1, Smith had thirty days following the imposition of his sentence to file a motion to reconsider sentence. Smith was sentenced on September 3, 2004. He filed his motion to reconsider sentence on April 18, 2005, which was beyond said thirty day time limit. Therefore, according to La. Code Crim.P. art. 881.1, Smith’s motion to reconsider sentence was untimely filed and that time period cannot be used to extend the time period allowed for appeal as set forth in La.Code Crim.P. art. 914.

Smith also filed a motion for new trial; however, that motion was filed after sentencing and was eventually amended to involve only newly discovered evidence. Pursuant to La.Code CrinxP. art. 853, a motion for new trial based upon newly discovered evidence may be filed within one year after verdict or judgment of the trial court. Accordingly, the motion for new trial did not affect the time in which Smith was required to file a motion for appeal.

As Smith failed to file his motion for appeal within the time period allowed by La.Code Crim.P. art. 914, his conviction and sentence became final. Once Smith’s conviction and sentence became final, he could no longer obtain an appeal by simply filing a motion for appeal. State v. Labiche, 96-433 (La.App. 3 Cir. 7/31/96), 680 So.2d 77. Thus, Smith must first obtain reinstatement of his right to appeal by way of a properly filed application for post-conviction relief. Id.; State v. Dixon, 00-516 (La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475 So.2d 336 (La.1985).

In Dixon, this court stated:

State v. Counterman, 475 So.2d 336 (La.1985) sets forth the procedure which should be followed to obtain the right to file an out-of-time appeal. In Counterman, the defendant was sentenced on February 10, 1983. No appeal was filed within the time period set forth in Article 914. On April 10, 1984, the defendant filed a motion for an out-of-time appeal. The trial court granted the motion without a hearing and without | ^affording the district attorney an opportunity to respond to the motion. The First Circuit Court of Appeal dismissed the appeal “on the basis that the trial court was without authority or jurisdiction to grant an out-of-time appeal on an ex parte motion.” Id. at 338. The defendant filed a motion for out-of-time appeal with the court of appeal, which was denied. The defendant then filed a motion for out-of-time appeal with the supreme court. The supreme court held that the defendant lost his right to obtain an appeal by simply filing a motion for an appeal after the time delays had run — not because the trial court was divested of jurisdiction but “because the conviction and sentence became final when the defendant failed to appeal timely.” Id. (footnote omitted). The supreme court held that the proper procedure for obtaining an out-of-time appeal is by filing an application for post conviction relief pursuant to La.Code Crim.P. arts. 924-930.7. [ (footnote omitted).] In so ruling, the supreme court found several advantages to following this procedure. . Primarily, the district attorney would be allowed an opportunity to oppose a request, and the defendant would be afforded an evidentiary hearing to prove his allegations.
An out-of-time appeal is appropriately granted when the trial court has determined it is warranted “after due consideration of such factors as the length of the delay in defendant’s attempt to exercise the right and the adverse effect upon the state caused by the delay.” Id. at 340. The supreme court ultimately concluded that the defendant’s motion for an out-of-time appeal filed in the trial court should have been treated as an application for post conviction relief and remanded the case to the trial court for consideration as such. Following Counterman, we find that Defendant’s January 18, 2000 motion for appeal should have been treated by the trial court as an application for post conviction relief requesting an out-of-time appeal. We note that La. Code Crim.P. art. 930.8 now provides that the time delays for filing an application for post conviction relief are applicable to requests for out-of-time appeals, unless an exception is made. Therefore, Defendant shall be permitted an opportunity to amend his motion to comply with the requirements of Articles 924-930.8. By doing so, the State will then be given an opportunity to contest the granting of an appeal.

Dixon, 768 So.2d at 101-102.

Smith’s appeal is hereby dismissed and this case is remanded to the trial court for further proceedings. Smith is to be permitted an opportunity to seek an out-of-time appeal by way of an application for post conviction relief by amending his motion to appeal to comply with the requirements of La.Code Crim.P. arts. 924-930.8; and the State is to be given an opportunity to contest the granting of an Rout-of-time appeal.

APPEAL DISMISSED; REMANDED WITH INSTRUCTIONS.