text:
    Marsha MORGAN, Kerry Jones and Diane Morgan v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Stephen Perrilloux and his Unknown Insurance Company, ABC Insurance Company.
    No. 06-CA-615.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      Fred R. Defrancesch, Attorney at Law, LaPlace, Louisiana, for Plaintiffs/Appellants.
    Charles C. Foti, Jr., Attorney General, Sharry R. Scott, Assistant Attorney General, Louisiana Department of Justice, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

| gPlaintiffs-appellants (“plaintiffs”), Marsha Morgan and Kerry Jones, appeal the trial court’s award of damages to them in this automobile accident case. In their answer to the appeal, defendants-appellees (“defendants”) likewise appeal the award of damages to the plaintiffs and assert that the trial court further erred in its determination of liability. For the reasons that follow, we affirm.

On October 13, 2003, plaintiffs, Marsha Morgan (“Morgan”), Kerry Jones (“Jones”), and Diane Morgan, filed the instant suit in the Fortieth Judicial District Court for the Parish of St. John the Baptist against defendants, the Louisiana Department of Transportation and Development (“DOTD”), Stephen Perrilloux (“Perrilloux”), and Perrilloux’s insurer alleging that Perrilloux, an employee of DOTD, was responsible for causing an automobile accident on June 18, 2003 that resulted in plaintiffs’ injuries. After the parties stipulated that damages did not |sexceed $50,000 per plaintiff, the case proceeded as a bench trial on December 28, 2005. The trial court, on April 24, 2006, rendered judgment in favor of plaintiffs, awarding Morgan $9,700 in general damages in addition to $4,135.48 in medical costs, and also awarding Jones $7,800 in general damages in addition to $9,173.72 in medical costs. Plaintiffs timely filed the instant appeal.

On appeal, plaintiffs raise three assignments of error: (1) the trial court erred in finding that Morgan suffered a soft-tissue injury resulting in multi-level disc bulging; (2) the trial court erred by finding that Jones suffered a soft-tissue injury while also stating that Jones had neck and back pain radiating down into his legs; and (3) the trial court erred by awarding damages to Morgan and Jones that were not commensurate with the injuries they sustained in the accident at issue.

In their answer to plaintiffs’ appeal, defendants assert that the trial court erred in its allocation of fault, in its determination of causation with regard to plaintiffs’ injuries, and in its award of damages.

We begin our analysis by addressing the defendants’ assertion that the trial court erred in its allocation of fault. We note that the judgment in this case, while it awards damages to the plaintiffs, fails to make a specific finding of liability, expressed in percentage, in regard to each party as mandated by LSA-C.C.P. arts. 1917 and 1812. However, we find that the judgment at issue implicitly assigns 100 percent fault against defendants.

The trier of fact’s allocation of fault is a factual determination that is owed some deference by the appellate court and, therefore, it should not be disturbed unless it is manifestly erroneous or clearly wrong.

|4The record indicates that the accident forming the basis of this suit occurred on U.S. 61 (Airline Highway) in St. John the Baptist Parish. Morgan, who was traveling westbound, proceeded from a stoplight toward the intersection of Airline and Bert Street. Defendant Perrilloux, exited from Bert Street and crossed the westbound lanes of Airline Highway to make a left-hand turn in order to drive east on Airline. The record contains testimony from several individuals pertaining to the details of the accident.

Morgan testified the “the other vehicle pulled out of Bert Street and I tried to avoid it and I couldn’t.” She detailed that she was proceeding from LaPlace toward Reserve, after just having left Taco Bell. Morgan saw the Perrilloux vehicle and “tried to swerve from hitting him, but I couldn’t stop; it was too sudden.” She did not recall if there was a car behind her or to the left of her. Morgan explained that she was in the left lane of the two-lane road when Perrilloux pulled out approximately sixteen feet in front of her.

Jones, who was a passenger in Morgan’s car, also testified about the events leading to the accident:

MR. DEFRANCESH [PLAINITFFS’ COUNSEL]
Kerry, how did the accident happen? KERRY JONES
We was [sic] going towards, we was going west in [sic] Airline Highway and a truck pulled out and we hit them at the back. We tried to swerve from hitting them, but we couldn’t avoid it.

On cross-examination, Jones clarified that he saw the Perrilloux vehicle when it was in the right-hand lane coming across into the left-hand lane. Jones did not recall if another vehicle was in front of, behind, or on the side of Morgan’s car. He also did not know how fast Morgan was driving at the time of the accident.

|sSergeant Donald Mince (“Sgt. Mince”), from the traffic division of the St. John the Baptist’s Sheriffs Office, was the investigating officer for the accident at issue. Sgt. Mince testified that he arrived on the scene approximately one minute after the accident occurred. Sgt. Mince stated that his report on the accident indicated that Perrilloux did see Morgan’s ear when he pulled out from Bert Street to make a left-hand turn east on U.S. 61. His report also indicated that Morgan said Perrilloux’s vehicle crossed in front of her and she could not stop in time. Sgt. Mince issued a citation to Perrilloux for failing to yield to a vehicle turning left, and to Morgan for not having a child restraint device. Sgt. Mince stated that neither driver had an obstruction that would have prevented them from seeing one another.

Defendant Perrilloux also testified at trial regarding the events surrounding the accident. Perrilloux stated at trial:

PERRILLOUX:
I was leaving Bert Street to head eastbound on Airline Highway, and looked to my left, and there was a traffic light down there. The traffic was stopped, and I looked to my right for traffic to clear, and after it cleared
I glanced to my left and the cars had come from the light, but I had enough time to make it to the center turn lane. When I began to cross, I saw a white car coming up in the left-hand lane. There was a blue car in the right lane. And as I got into the right lane I saw a white car coming very fast in the left lane, and I attempted to get in the center turn lane.
I was in the right-hand lane; I had already begun to cross, and I saw her coming, and I stepped on the gas to get in the turn lane as quick as possible.

Inasmuch as this appeal turns on factual determinations by the trial judge, we must review the record using the manifest error-clearly wrong standard of | (¡appellate review. That standard was recently reviewed by our supreme court in Cenac v. Public, Access Water Rights Ass’n.:

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

After a review of the testimony and evidence in this case, we cannot say that the trial court’s finding of fault on the part of the defendants in this case is manifestly erroneous. Accordingly we find this assignment to be without merit.

Next, we consider the issues of causation and severity of plaintiffs’ injuries as raised by both the plaintiffs and defendants.

Marsha Morgan

The record shows that Morgan did not report being injured at the scene of the accident. At trial, Morgan testified that she only began to feel pain “a few months after the accident.”

Dr. Robert Dale (“Dr. Dale”), a chiropractor, testified at trial. Dr. Dale indicated that he believed that Morgan had experienced disc damage, specifically, a protrusion at L4-L5, L5-L6, and L6-L7. Dr. Dale said his diagnosis of Morgan was that she had cervical lumbosacral sprain/strain injuries. Morgan treated with Dr. Dale beginning on October 17, 2003 using “conservative care.” On cross-examination, Dr. Dale indicated that he first treated Morgan nearly four months post-accident, and continued to treat through December 19, 2003. Dr. Dale opined that Morgan “in all likelihood [will] have degenerative problems with those discs |7over the course of her life and may ultimately result in having surgical intervention at some point due to that disc damage.” Also entered into evidence were reports by Dr. Daniel Johnson and Dr. Vaclav Hamsa (“Dr. Ham-sa”), which were relied upon by Dr. Dale in making his diagnosis. Dr. Hamsa’s deposition testimony concerning Morgan’s diagnosis was further made a part of the record as well.

Defendants entered into evidence the deposition testimony of Dr. John Lee Moss (“Dr. Moss”), an orthopedic surgeon, who conducted an independent medical examination of Morgan. Dr. Moss stated that, more likely than not, Morgan had injuries to her neck and lower back as a result of the accident of June 18, 2003. However, Dr. Moss also indicated that he did not believe that Morgan suffered any permanent partial impairment from the injury. Dr. Moss further opined that his examination revealed that Morgan’s condition was degenerative in nature and did not consist of herniations.

In its judgment, the trial court made the following findings:

Plaintiff, Marsha Morgan, is found to have suffered a soft tissue injury, resulting in multi-level disc bulging. Initially, she stated she was not injured and did not seek treatment until nearly four months post accident. Thereafter, she treated sporadically with Dr. Robert Dale, chiropractor, and Dr. Vaclav Ham-sa. Her treating physicians were of the opinion that her injury was permanent and recommended epidural injections to manage the pain. Plaintiff, Ms. Morgan, chose rather to be treated with medicine. At trial she testified that she continues to experience pain[;] however[,] she has not received treatment since July of 2005. The objective finding of multi-level bulging, coupled with Ms. Morgan’s age of nineteen at the time of the accident, supports the conclusion that her condition was caused by this accident.

As noted by the Louisiana Supreme Court in Cheairs v. State ex rel. Dep’t of Transp. and Dev.:

When the district court has allowed both parties to present their experts before making its factual determinations, the factfinder’s choice of alternative permissible views cannot be considered to |sbe manifestly erroneous or clearly wrong. See Fussell v. Road-runner Towing and Recovery, Inc., 99-0194 (La.App. 1 Cir. 3/31/00),765 So.2d 373, 376, citing Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993).

Here, the trial judge was presented with two opposing medical opinions of Morgan’s injuries and was required to choose between them. We cannot say, on the evidence in the record, that the trial judge was clearly wrong in finding the defendants’ expert’s diagnosis more credible. We further find no merit in Morgan’s argument that an additur to Morgan’s award of damages is warranted under the facts of this case.

In reviewing the record, we further find no merit to defendants’ argument that the trial court’s finding of causation of Morgan’s injuries was erroneous.

Kerry Jones

The record shows that Jones reported to the investigating officer that he had received injuries as a result of the accident. Jones was transported to River Parish Hospital, where he was examined. Jones testified at trial that, after the accident, his upper back and neck were hurting.

Charles Hargrave (“Hargrave”), who testified on behalf of the State, did claims investigations for the State for insurance purposes and was assigned to the accident at issue. Hargrave said that, in the course of the investigation, he learned that Jones had been in another automobile accident on May 13, 2003, approximately one month before the accident that forms the basis of the instant suit. Hargrave stated that he discovered that Jones complained of neck and lower back injuries in the previous accident and received $800 from State Farm Insurance to settle the claim.

|flDr. Dale testified that he first treated Jones on October 13, 2003, several months after the accident, when Jones presented complaints of cervical and upper thoracic pain, left shoulder pain, muscle spasms and stiffness, as well as lumbosacral pain, bilateral sacroiliac joint pain, and right-hip pain. Dr. Dale diagnosed Jones as having received a cervical and lumbosacral sprain/ strain injuries with muscle spasm, myalgia, cervicalgia, cervicogenic headache, post-traumatic shoulder bursa swelling, and sciatic nerve root compression. Dr. Dale said that, following the receipt of an MRI and report from Dr. Daniel Johnson, he altered Jones’ diagnosis to include damage to the discs in the cervical and lumbar spines.

Also entered into the record was the report and deposition testimony of Dr. Hamsa. Dr. Hamsa opined that Jones sustained a cervical discogenic sprain, C5-C6, with disc rupture at C4-C5.

The defendants submitted the deposition testimony of Dr. John Lee Moss (“Dr. Moss”), an orthopedic surgeon, who conducted an independent medical examination of Jones. In his deposition, Dr. Moss stated that, after examining Jones and reviewing all available medical records and films, it was his opinion that Jones had sustained a strain of soft tissue with injuries to his neck, mid back, and low back resulting from the accident of June 18, 2003. Dr. Moss also opined that Jones did not sustain any permanent partial impairment from the accident forming the basis of this suit.

In regard to Jones, the trial court, in its judgment, stated:

Following the accident, plaintiff, Kerry Jones, was seen in the emergency room at River Parishes Hospital where his chief complaint was chest pains. Subsequently, about four months later, plaintiff began treatment with Dr. Robert Dale, chiropractor, and Dr. Vaclav Ham-sa. He treated sporadically over an extended period of time. This court concluded that he suffered a soft tissue injury whereby 110he experienced pain in his neck, mid back and low back, radiating down into his legs.... This court finds that plaintiffs injuries are related to the accident of June 18, 2003 and the amount awarded considers the earlier 2003 accident he was involved in wherein he received no medical treatment.

Here, once again, the trial judge was presented with two opposing medical opinions of a plaintiffs injuries and was required to choose between them. We cannot say, on the evidence in the record, that the trial judge was clearly wrong in finding the defendant’s expert’s diagnosis more credible. We further find no merit in Jones’ argument that an increase to Jones’ award of damages is warranted.

In reviewing the record, we further find no merit to defendants’ argument that the trial court finding of causation of Jones’ injuries was erroneous.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. Each party is to bear its own cost.

AFFIRMED.

      . Reaux v. City of New Orleans, 2001-1585 (La.App. 4 Cir. 3/20/02), 815 So.2d 191, writ denied, 2002-1068 (La.6/14/02), 817 So.2d 1158.

      . Molina v. City of New Orleans, 2001-1411 (La.App. 4 Cir. 10/2/02), 830 So.2d 994, writ denied, 2003-0156 (La.3/28/03), 840 So.2d 573.

      . 02-2660, pp. 9-10 (La.6/27/03), 851 So.2d 1006, 1023.

      . 2003-0680 (La.12/3/03), 861 So.2d 536, 546.

      . The report from that emergency room visit was not in the record, although relied upon by defendants on appeal.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Barbara Boeshans, Wife of/and David BOESHANS v. PETSMART, INC. and Royal & Sunalliance.
    No. 06-CA-606.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      Gary M. Pendergast, Attorney at Law, New Orleans, Louisiana, for PlaintifflAp-pellant.
    Jeffrey K. Warwick, Attorney at Law, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| .¿Plaintiffs, Barbara and David Boesh-ans, appeal a judgment of the trial court that granted a defense motion for summary judgment and dismissed all claims made by plaintiffs in this slip and fall action. We affirm.

Plaintiffs filed this lawsuit to recover damages sustained by Barbara Boeshans in a slip and fall which occurred at defendant PetsMart, a retail store located in Harvey, Louisiana. According to her testimony, Ms. Boeshans, while visiting her daughter who lives in Harvey, drove her daughter’s dog, Jake, to PetsMart for grooming on a rainy day in June of 2003. When she got to PetsMart, Ms. Boeshans got out of her car and attempted to get the leash to get Jake out of the car. However, Jake bolted out of the car and ran to the door of PetsMart ahead of Ms. Boeshans. He stopped once to “tinkle” then continued into the store. Knowing that Jake was safely inside the store, Ms. Boeshans continued up to the double glass front doors. Just after entering the store she slipped and fell, breaking |3her arm. Ms. Boesh-ans testified that it was raining hard that day and that she did not have a raincoat or an umbrella. She did not recall seeing a mat on the floor, nor did she see any water on the floor. Ms. Boeshans stated that she had just gotten inside of the store when she fell and she “really wasn’t in there long enough to see anything.” When asked what caused her to trip, Ms. Boeshans testified that she thought it was either rainwater or urine. She testified that, “those to me would be my only choice ... .the only thing that I would think would be there.” However, Ms. Boeshans also testified that she saw neither substance on the floor. She further stated that no one told her the floor was wet.

The court also considered testimony from Keith Bryant, who was the store director for PetsMart at the time of Ms. Boeshans’ fall. Although Mr. Bryant could not recall Ms. Boeshans’ name, he did recall the accident which he classified as the only “major accident” at the store during his tenure. Mr. Bryant testified that he was standing near the front of the store and witnessed the accident. According to Mr. Bryant’s account of the incident, Ms. Boeshans entered the store on a rainy day being forcefully pulled by her dog. Mr. Bryant testified that there was a mat inside of the store. As Ms. Boeshans came through the front door, she stepped off of the mat and was tripped by her dog. She fell hard on her right arm. The incident was also witnessed by the assistant manager.

Mr. Bryant explained that there was a rubber mat, about four by six feet, at the door on this rainy day. He also stated that the store has no particular policy procedures to address rainy conditions. However, if there is a “trip hazard,” cones and “wet floor” signs are placed in the area. Mr. Bryant stated that there were no cones or signs placed near the entrance at the time of Ms. Boeshans’ fall because it was not wet when Ms. Boeshans came in. However, after the incident, the floor was wet where she fell.

|4Plaintiffs filed this timely action for damages sustained in Ms. Boeshans’ fall. In due course, defendants filed a motion for summary judgment. At the hearing on the motion defendant argued successfully that plaintiff failed to show constructive notice of a dangerous condition as required by La. R.S. 9:2800.6. Plaintiffs countered that the lack of a specific policy to address wet floor conditions on rainy days is sufficient to defeat the defense motion.

The trial court granted the motion for summary judgment and dismissed plaintiffs’ case after consideration of the testimony and arguments of counsel. It is from that judgment that plaintiffs appeal.

Summary judgments are now favored in the law and are to be granted when, after there remains no material issue of fact to be decided and the mover is entitled to summary judgment as a matter of law. La. C.C.P. Art. 966. The burden is with the mover. However, La. C.C.P. art. 966(2) provides that;

.if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804, writ denied, 05-1976 (La.2/3/06), 922 So.2d 1184. Under La. R.S. 9:2800.6 a plaintiff has the burden of proving that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the incident. Oster v. Winn-Dixie, 04-117 (La.App. 5 Cir. 8/31/04), 881 So.2d 1257; writ denied, 2004-2414 (La.12/17/04) 5888 So.2d 867. In a discussion of the burden of proof necessary for a cause of action pursuant to La. R.S. 9:2800.6, the Louisiana Supreme Court explained:

Because the statute is clear and unambiguous and contains no provision for shifting the burden to the defendant to prove his lack of culpability, we find that it is the plaintiffs burden to prove each element of her cause of action under La. R.S. 9:2800.6(B) (1991). Furthermore, because constructive notice is plainly defined to include a mandatory temporal element, we find that where a claimant is relying upon constructive notice under La. R.S. 9:2800.6(B)(2) (1991), the claimant must come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence.
White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, 1802

Our review of the trial court’s grant of a motion for summary judgment is de novo. Ocean Energy v. Plaquemines Parish Gvmt., 04-0066 (La.7/6/04), 880 So.2d 1. In the matter before us plaintiff testified that she went into store and slipped. Although she supposed the slip was caused by rain water or dog urine, she admits she saw nothing on the floor. Further, the testimony of the store manager is that the floor was not wet prior to Ms. Boeshans’ fall. Therefore, we find the plaintiff did not meet her burden of proof that defendant had actual or constructive notice prior to the fall that the floor was wet.

We are unconvinced by plaintiffs’ argument that Mr. Bryant’s testimony as to the lack of the existence of a specific policy to handle the entrance on a rainy day is sufficient to defeat defendant’s motion for summary judgment. The lack of a specific plan to warn customers of a wet floor is irrelevant when there is no evidence that defendant had any notice of liquid on the floor prior to the fall. Here, plaintiffs have failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial regarding the temporal element of notice. Therefore, under the law there is no genuine issue of material 1 fifact remaining to be decided. Accordingly, find the trial court correctly granted summary judgment in favor of defendants.

For the foregoing reasons, we affirm the decision of the trial court.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Patrick J. KEARNEY v. LEE MEDICAL INTERNATIONAL, INC.
    No. 06-CA-597.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      Mare L. Frischhertz, Attorney at Law, Baton Rouge, LA, Lloyd N. Frischhertz, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    John F. Shreves, Shawn L. Holahan, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   GUIDRY, Judge.

I ¡.The Plaintiff, Patrick P. Kearney, and the Defendant, Lee Medical International, Inc., appeal from a judgment in a wage dispute. We affirm.

The Plaintiff was employed by the Defendant as an outside sales representative, primarily selling dialysis equipment and ancillary supplies. His employment began on April 1, 2003. On April 15, 2005, without prior notice, the Plaintiff was terminated. He was informed at that time that his salary and commission wages were not going to be paid due to a number of set-offs he owed to the company. In response, the Plaintiff contacted his attorney, who immediately sent a demand for payment of the wages. The Defendant refused to pay. Among the set-offs, the Defendant claimed $5,000 as liquidated damages pursuant to a “brass handcuffs” incentive bonus agreement the parties entered into on June 6, 2004.

|aThe Plaintiff subsequently filed a Motion for Summary Judgment claiming unpaid wages, penalties and attorney’s fees under La.R.S. 23:631. A trial on the merits was held on June 22, 2005 and July 15, 2005. On April 3, 2006, the trial judge rendered a judgment, finding that the Plaintiff did not breach the agreement, and awarded the Plaintiff $5,000 for the bonus wages, and $4,000 for attorney’s fees. The trial judge denied the penalty claim on the basis that the amount asked for was excessive.

On appeal, the Plaintiff asserts that the trial judge erred in failing to award penalties as they are mandated by the wage payment statute. He further contends that the amount he calculated for the penalties was correct under the statute.

The Defendant filed an answer to the appeal. The Defendant contends that the trial judge erred in awarding the bonus and attorney’s fees. The Defendant contends that the $5,000 was a one-time incentive bonus, not a wage, and payment of the bonus was contingent on the Plaintiff remaining employed until a certain date.

The Defendant withheld $5,000 as a repayment of the bonus based on a letter agreement signed by the Plaintiff and the company president, Jeffery Tauzier, dated June 23, 2004. It states:

Dear Patrick,
Jeff and I would like you to know how much we appreciate your sales efforts over the past year. You have been called upon to turn around a struggling yet vibrant territory and you have succeeded with a positive mental attitude. |4You are a vital part of the future success and growth of Lee Medical and as such we would like to reward you for past performance and also tie you more closely to your job responsibilities. Therefore, we would like to offer you a one-time bonus of $5,000 payable in one lump sum at the end of this month with only one stipulation. I would like to use this additional $5,000 bonus as a form of “brass handcuffs” (I don’t think $5,000 qualifies as golden handcuffs) to keep you at Lee Medical for the next two years, through June 30, 2006. Additionally, this bonus will in no way affect your year end bonus, whatever that may or may not be. This is a completely separate bonus.
Basically, here’s the deal; you get the $5,000 bonus immediately and should you leave the employ of Lee Medical at anytime between now and June 30, 2006, you authorize Lee Medial to deduct $5,000 from any payroll, commission, car allowance or other payment owed to you at that time. There are no performance qualifications on this offer, as I believe people don’t change. You have worked hard and have been successful in the past and I expect you to perform in the same manner in the future.
We congratulate you on your past performance and hope that this offer in some small way shows you how much we value you within this organization.
[Emphasis added.]

CONTRACT INTERPRETATION

The Defendant contends that it is entitled to withhold the bonus from the Plaintiff because the Plaintiff left its employ and breached the contract. The Defendant argues that this condition applies even if the Plaintiff was involuntarily terminated, as here. We disagree.

The words of this agreement are clear. The bonus was given to the Plaintiff for his past performance, and to keep him from leaving the Defendant’s employment for two years. According to the agreement, should “you [the Plaintiff] leave the employ of Lee Michael ....,” the Plaintiff was obligated to repay the $5,000. To construe it as the Defendant asserts, that it was intended that the bonus would have to be repaid even if the Defendant fired the Plaintiff, would grant to the Defendant the whimsical ability to prevent Plaintiffs compliance with his obligation. Such an interpretation would lead to absurd consequences. See: RLa.C.C. art. 2046. Therefore, we find that the repayment condition in the agreement applied only if the Plaintiff left the Defendant’s employ voluntarily.

WAGE LAW

La.R.S. 23:631 provides in part:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first ...
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592. [Emphasis added.]

The penalty for failing or refusing to comply with La. R.S. 23:631 is payment to the employee either “ninety days wages at the employee’s daily rate of pay, or ... full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.” Under R.S. 23:632, reasonable attorney fees are recoverable from the employer “in the event a well-founded suit for any unpaid wages ... be filed by the ... employee .... after three days ... from time of making the first demand following discharge or resignation.”

R.S. 23:631 refers to wages that are due “under the terms of employment.” The agreement states, “Therefore, we would like to offer you a one-time bonus.... Additionally, this bonus will in no way affect your year end bonus.... This is a completely separate bonus.... There are no performance qualifications.” However, the letter also states: “I would like to use this additional $5,000 bonus as a form of ‘brass handcuffs ... ’ to keep you at Lee Medical for the next two | ¿years.... ” Based on the language of the letter, we find that the letter modified the terms of the Plaintiffs original employment agreement by requiring him to remain on the job an additional two years if he accepted the bonus. This added stipulation made the bonus more than simply a one time event. For the next two years, the Plaintiff was obligated to return the money should he “leave the employ of Lee Medical.” Thus, the bonus falls within the ambit of La.R.S. 23:631 et seq. and was wages subject to the provisions of the wages statutes. It is also significant that the bonus was at least in part for past performance. Consequently, the trial judge did not err in awarding the Plaintiff his $5,000 bonus.

ATTORNEY’S FEES

Because R.S. 23:631 et seq. is applicable, and the suit for wages was well-founded, under R.S. 23:632 the Plaintiff is entitled to attorney’s fees. After our review of the record, we find that the trial judge did not err in awarding the Plaintiff $4,000 for attorney’s fees.

PENALTIES

The Plaintiff argues that the trial judge erred in failing to award penalties. The Defendant responds that the trial judge’s refusal to award penalties was not error, as Defendant was reasonably justified in withholding the bonus.

In Wyatt v. Avoyelles Parish School Bd., 01-3180 (La.12/4/02), 831 So.2d 906, 916-917, the Louisiana Supreme Court stated:

La. R.S. 23:632 is a penal statute that must be strictly construed and may yield to equitable results. This court has previously stated that “a good-faith non-arbitrary defense to liability for unpaid wages, i.e., a reasonable basis for resisting liability” permits a court to decline to impose penalty wages on an employer. [Citations omitted.]

A determination of whether an employer is in good or bad faith in withholding wages is a factual question subject to the manifest error/clearly wrong | ^standard of review. Saacks v. Mohawk Carpet Corp., 03-0386, pgs. 15-16 (La.App. 4th Cir. — 8/20/03), 855 So.2d 359, 370.

The trial judge refused to award penalties on the basis that the amount demanded was excessive. However, penalties for failure to pay wages are mandated by the statute. Nevertheless, penalties are only due if the failure to pay was not in good faith. Here, the Defendant’s position concerning payment of the bonus had a reasonable basis. Thus, we find that the Plaintiff is not entitled to penalties.

Accordingly, the judgment is affirmed. Each party is to bear his or its costs of this appeal.

AFFIRMED.

      . Plaintiff is a resident of Atlanta, Georgia. His territory was most of the southeastern United States.

      . La.R.S. 23:631 et seq. provides that the employee shall have the right to file an action to enforce a wage claim pursuant to Code of Civil Procedure Article 2592, allowing summary proceedings in certain cases. A summary proceeding can be commenced by filing a contradictory motion, by rule to show cause, or petition. Technically this petition is misnamed a Motion for Summaty Judgment. Unlike a motion for summary judgment under La.C.C.P. art. 966, a summary proceeding requires a trial, either in open court in chambers. We construe this petition as one for summary proceedings, recognizing that it was properly tried on the merits in conformity with C.C.P. art. 2595.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Brenda A. WEAVER.
    No. 06-CA-576.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

12Plaintiff-appellant, the State of Louisiana (“the State”), appeals from a trial court judgment that granted defendant-appellee’s Motion to Set Aside Bond Forfeiture. For the reasons that follow, we reverse and remand for further proceedings.

Defendant-appellee, Brenda Weaver (“Weaver”), was released on a $20,000 commercial appearance bond on December 23, 2003, after being charged with criminal treatment of a juvenile on May 19, 2004. Bankers Insurance Company acted as surety for the bond. The record reflects that the address provided by Weaver on the appearance bond was 2839 Salem Street in Kenner.

Weaver was subpoenaed to appear in Commissioner’s Court for the Parish of Jefferson on July 7, 2004 for arraignment. The return on that subpoena stated that the Jefferson Parish Sheriffs Office was unable to serve Weaver at the address provided after making five attempts. Weaver was then subpoenaed to appear before the Commissioner’s Court for an August 4, 2004 arraignment. Once again the record reflects that the Sheriffs Office was unable to serve Weaver at the address provided after making five attempts.

| ¡Weaver was then personally served on August 11, 2004 at the Salem address with a subpoena to appear before the court on September 15, 2004. Weaver was also served on September 24, 2004 at the Salem address to appear before the court on October 13, 2004.

Six subsequent subpoenas to Weaver at the Salem address were identified as undelivered for a variety of reasons. First, it was indicated an apartment number was needed to effectuate service. An apartment number then did appear on a subpoena dated February 24, 2005. The last subpoenas sent to Weaver returned were marked “Not at this address per resident.”

After a failure to appear before the court on December 12, 2005, Weaver’s bond was forfeited. The return on the subpoena issued to Weaver for the December 12, 2005 court date noted “Not at this address per resident.” The address on the subpoena was 2839 Salem Street, Apartment B.

On January 31, 2006, Bankers Insurance Company filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment, which was heard by the trial court on May 15, 2006. The trial court granted defendant’s motion on that same date.

The State timely filed the present appeal.

LAW AND ARGUMENT

On appeal, the State’s lone assignment of error is that the trial court erred in granting defendant’s Motion to Set Aside Bond Forfeiture.

LSA-C.Cr.P. art. 322 states:

A. The defendant when signing a bail bond shall write under his signature the address at which he resides. The address shall be conclusively presumed to continue for all proceedings \Aon the bond, until he files in the proceeding in which the bond was given a written declaration changing the address.

(Emphasis added.)

LSA-C.Cr.P. art. 344, providing for the right to notice of time and place of a defendant’s required appearance, states:

A. When a bail bond fixes the initial appearance date, no additional notice is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, if the defendant appears as ordered. If a defendant fails to appear when a bail bond fixes the initial appearance date, no additional preforfeiture notice for that date is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety. The bond shall be forfeited forthwith as per R.S. 15:85.
B. (1) When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail, the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, shall be given written notice of the time, date, and place the principal is required to appear.
(2)The notice may be delivered to the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety by an officer designated by the court, at least two days prior to the day set for the appearance; or this notice may be mailed by United States first class mail to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, at least three days prior to the day set for the appearance. The notice shall be mailed to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety to the address designated pursuant to Article 322.
(3) If the defendant appears as ordered and the proceeding is continued to a specific date, the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety need not be given notice of the new appearance date. If the defendant fails to appear as ^ordered, or the proceeding is not continued to a specific date, the personal surety or the agent or bondsman who posted the bond for the commercial surety shall be given notice of the new appearance date.
(4) Failure to give notice, as required by this Paragraph, relieves the surety from liability on a judgment of bond forfeiture for the defendant’s nonappearance on that particular date.

(Emphasis added.)

LSA-R.S. 15:85, on the procedure for forfeiting an appearance bond, in pertinent part, provides:

All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:
(1) Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 311 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.

(Emphasis added.)

As this Court noted in the recent case of State v. McLaurin:

[W]e are mindful that bond forfeitures are not favored by law. State v. Hathaway, 403 So.2d 737 (La.1981); State v. Rotramel, 95-1074 (La.App. 3rd Cir.1/31/96), 670 So.2d 378. Strict compliance with the statutes is required. Banker’s Ins. Co. v. Kemp, 96-0469 (La. App. 1st Cir.12/20/96), 686 So.2d 111; State v. Lanns, 95-0781 (La.App. 1st Cir.11/9/95), 665 So.2d 66. Thus, the State must strictly comply with the statutory procedure in bond forfeiture actions in order to obtain a valid bond forfeiture. State v. DeLaRose, 391 So.2d 842 (La.1980); State v. Rotramel, 95-1074 (La.App. 3rd Cir.1/31/96), 670 So.2d 378.

Lin the present case, the record shows the address appearing above Weaver’s signature to be “2839 Salem Street, Kenner LA.” Pursuant to LSA-C.Cr.P. art. 322, this address provided by Weaver is presumed to be correct for all proceedings. The record shows that Weaver was, in fact, twice successfully served at this address both through personal and domiciliary service.

At the hearing on its Motion, Bankers Insurance Company argued:

MR. BECK [FOR BANKER’S INSURANCE COMPANY]:
Looking at the history of the notices to the defendant when the defendant was served at 2839 Salem Street, the defendant received service by personal mail one time — personal service one time and by domiciliary service another time.
When the State started putting on its motion — on its subpoena Apartment B, it started coming back “Unable to serve. Not at this address.” And that’s where we were when this judgment of bond forfeiture was rendered. There was a return on the defendant “Not at this address,” and that’s not sufficient evidence to support a judgment of bond forfeiture under 1585.

Conversely, the State asserted at the hearing that it had not requested the change in address on the subpoenas that were to be served upon Weaver:

MR. PACIERA [FOR THE STATE]:

As far as the “B” being an apartment, that’s simply a more definite address and the only way that could have been added is if in court when the defendant showed up one of the times was asked is there an apartment number and he [sic] would have given that apartment number. At any rate, it’s still the address— the physical address of the defendant.

The State further contended at the hearing, as it does on appeal, that where a defendant provides an incorrect address on a surety bond, and the State proves that it sent notice of the hearing date by attempting to serve the defendant at the incorrect address, proof of notice is satisfied under LSA-R.S. 15:85.

Our determination of the issue in this case, therefore, turns on findings of whether Weaver provided an incorrect address on her bond, in violation of LSA-jC.Cr.P.7 art. 322, or, in the alternative, whether the State failed to provide service to a valid address pursuant to LSA-C.Cr.P. art. 344.

We first note that the address provided by Weaver on the bond of 2839 Salem Street in Kenner was clearly correct at the outset, as evidenced by the fact that she was twice served there. What the record does not demonstrate, however, is whether or why Weaver could no longer be served at 2839 Salem Street after a certain point in time. After twice successfully serving Weaver at that Salem Street address without any designated apartment number, the Sheriff’s Office noted on the December 10, 2004 return that it needed an apartment number to deliver the subpoena to Weaver. In the subpoenas that follow, which contain the addition of “Apartment B” to the address for service, the Sheriffs Office notes that Weaver was “not at this address.” It is not clear, however, whether the “address” refers to the initial address of the building at 2839 Salem Street, or to the more specific address of “Apartment B.”

Furthermore, in spite of conflicting assertions by both the State and Bankers Insurance Company, there is no evidence in the record to support how the added information of “Apartment B” to the Salem address was made. Without this evidence, it is impossible for this Court to determine whether the State provided proof of notice sufficient to sustain the bond forfeiture.

For the foregoing reasons, the judgment of the trial court, which set aside the bond forfeiture, is hereby reversed, and we remand for an evidentiary hearing and further proceedings. On remand, the trial court should address the following issues: whether Weaver breached her bail obligation by failing to provide a correct address on her bond; why service on Weaver at the Salem address by the Jefferson Parish Sheriffs Office, without further designation of an apartment number, was no longer possible after service was twice successful at the Salem address alone, | sand; by what means was the apartment number added to subpoenas sent to Weaver after a certain point in time, specifically, was the apartment number added by Weaver or the State?

Each party to the appeal is to bear its own cost.

REVERSED AND REMANDED.

      . As discussed, infra, it is unclear from the record how the additional address information was provided since no formal written motion was made by either the State or Weaver.

      . 05-857 (La.App. 5 Cir. 3/28/06), 927 So.2d 570, 573.