author: GUIDRY, J. McCLENDON,

text:
    Herman WARREN v. ACTION OIL RECOVERY.
    No. 2005 CA 1755.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.

      Michelle M. Sorrells, Baton Rouge, Counsel for PlaintiffAppellee Herman Warren.
    John J. Rabalais, Laurie W. Maschek, Covington, Counsel for Defendant/Appellant Action Oil Recovery, Inc.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

[2An employer appeals a decision of the Office of Workers’ Compensation Administration awarding indemnity benefits after previously finding that an employee’s claim for benefits had not prescribed by virtue of the “developmental injury rule.” Having carefully reviewed the evidence in this matter, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 23, 2002, Herman Warren filed a disputed claim for compensation (Form 1008) with the Office of Workers’ Compensation Administration, seeking wage benefits, penalties, and attorney fees against his employer, Action Oil Recovery, Inc. (Action Oil). In his claim, Mr. Warren asserted that he had injured his back in March 2001, while engaged in the course and scope of his employment. Mr. Warren later amended his claim to add Louisiana Commerce and Trade Association Self Insurers Fund (LCTA) as a defendant in the claim. Action Oil and LCTA denied liability for payment of the claimed benefits, penalties, and attorney fees, and further asserted several defenses to the claim. Thereafter, Action Oil filed a motion for summary judgment wherein it excepted to Mr. Warren’s claim by raising the objection of prescription. Mr. Warren filed a cross motion for summary judgment seeking a declaration that his claim was not prescribed.

A trial on the cross motions for summary judgment was held, and the workers’ compensation judge (WCJ) found that Mr. Warren’s claim for indemnity benefits was not prescribed. Action Oil filed applications for supervisory writs with this court and the Louisiana Supreme Court, which were denied, and the matter proceeded to trial. At the trial on the merits, the WCJ refused to reconsider Action Oil’s defense that Mr. Warren’s claim was untimely and rendered .judgment | sawarding Mr. Warren temporary, total disability benefits, but denied his request for penalties and attorney fees. Action Oil filed a motion to suspen-sively appeal the judgment signed by the WCJ on December 13, 2004.

ASSIGNMENTS OF ERROR

On appeal, Action Oil alleges that the WCJ erred as a matter of fact in finding that Mr. Warren’s claim was subject to the developing injury rule under La. R.S. 23:1209, and as a matter of law in finding that his claim, filed nearly twenty-one months after the date of injury, was not prescribed. Mr. Warren has answered the appeal seeking reversal of that portion of the judgment that denied him an award of penalties and attorney fees and Mr. Warren further requests an award of additional attorney fees for work performed by counsel in responding to this appeal.

DISCUSSION

It is a well-settled principle that the provisions of the workers’ compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 95-1395, pp. 5-6 (La.7/2/96), 676 So.2d 582, 586. Despite this principle, Action Oil contends that Mr. Warren’s injury was not a developing injury to which the extended time limits of La. R.S. 23:1209 A would apply. We disagree.

The pertinent language of La. R.S. 23:1209 A provides:

In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.... Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. [Footnote omitted].

|4Our courts have consistently interpreted “the time the injury develops” to mean “development of disability, and disability marks the time from which it is clear that the employee is no longer able to perform the duties of his employment in a satisfactory manner.” Swearingen v. Air Products & Chemical, Inc., 481 So.2d 122, 124 (La.1986). The underlying rationale for this interpretation is that an injured employee who continues to work, despite a work-related medical condition, which is painful but not then disabling, should not be penalized for attempting to remain in the work force in order to support his or her family or in the hope that the condition will improve. See Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859, p. 5 (La.4/10/95), 652 So.2d 1323, 1326, citing Wex A. Malone & H. Alston Johnson III, 14 Louisiana Civil Law Treatise-Workers’ Compensation § 384 (3d ed.1994). Thus, it has been consistently held that an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Winford v. Conerly Corporation, 04-1278, p. 5 (La.3/11/05), 897 So.2d 560, 564.

In March 2001, Mr. Warren injured his back as he attempted to keep a drum full of used oil filters from falling off a dolly that he was using to transport the drum to his work vehicle. He immediately felt a sharp pain in his lower back and waited for about thirty minutes for the pain to ease before he completed his work and went home for the day. No one witnessed the incident. Believing he had just pulled a muscle in his back, Mr. Warren did not report the incident to his employer nor did he seek medical attention; instead, he used a heating pad, took baths in his |swhirlpool bathtub, and used pain medication to help alleviate the pain. After a few weeks when the pain did not resolve, but instead grew worse and began radiating into his buttocks and right leg, Mr. Warren finally reported the incident to his employer and was advised to seek medical attention.

Dr. Alan C. Farries, an orthopedist, initially saw Mr. Warren in June 2001, and had him begin a conservative course of treatment of pain medication and physical therapy. When Mr. Warren’s pain symptoms did not abate, Dr. Farries ordered a magnetic resonance imaging (MRI) scan of Mr. Warren’s back, following which Dr. Farries discussed treatment options with Mr. Warren that included “doing nothing, getting more physical therapy, ESI’s [epidural steroid injections] or maybe seeing a neurosurgeon.” Mr. Warren elected to try additional physical therapy, and when that proved to be unfruitful, he tried the epidural steroid injections, also to no avail. In a March 18, 2002 medical note, Dr. Farries stated, “[a]t this time he states he cannot afford to quit working. He wonders whether if he took off some time and just received physical therapy would this be of any benefit. I suspect not.” Having exhausted the treatment options offered, Dr. Farries referred Mr. Warren to Dr. Fraser E. Landreneau, a neurosurgeon.

Dr. Landreneau began treating Mr. Warren in April 2002. In an August 26, 2002 medical note, Dr. Landreneau mentioned that Mr. Warren had not had a myleogram CT scan performed, although one was ordered, and noted “I would have a myelogram prior to any surgical consideration which [is] highly possible.” A my-elogram was performed on Mr. Warren, and upon reviewing the results, Dr. Lan-dreneau found that Mr. Warren “has a severe stenosis that is debilitating and he is further non-functioning until this matter is addressed.” Dr. Landreneau then ordered Mr. Warren to stop working as of November 20, 2002, and on April 10, 2003, Dr. Landreneau performed decompression surgery on Mr. Warren’s back.

|fiUp until the day Dr. Landreneau ordered him to stop working, Mr. Warren continued to perform his full job duties and only missed a few, isolated days of work (when he received epidural steroid injections) between the date of his injury and November 20, 2002. Mr. Warren filed his claim for indemnity benefits on December 23, 2002 — one month after Dr. Landre-neau had ordered him to stop working, but within two years of the date of his injury in March 2001.

Despite this chronology of Mr. Warren’s medical treatment and work status, Action Oil nevertheless asserts that it is the date Mr. Warren became aware of the significance of his injury, citing Otis v. LSUMC Police Department, 02-0673 (La.App. 4th Cir.10/9/02), 828 So.2d 712, that determines when time began to toll on his claim. We find no merit in this argument as the language quoted is taken out of context. When the language is read in the context of the paragraph from which it is taken (and also considered in the context of the original opinion from which the language is quoted in the Otis case), it is clear that what is meant by an employee becoming aware of the significance of his injury is the employee’s awareness of his disability or inability to continue working. In Holcomb v. Bossier City Police Department, 27,095 (La.App. 2nd Cir.8/25/95), 660 So.2d 199, the case from which the language in Otis is quoted, the court held “[i]t was not until he was diagnosed with a herniated disc that it became clear to Holcomb that he was disabled and unable to work.” Holcomb, 27,095 at p. 5, 660 So.2d at 203. Even in the Otis case, the court found that under the “developing injury rule,” the claimant’s right to file his claim prescribed one year from the date he quit working, as that was the date the claimant “was no longer able to perform his duties of his employment in a satisfactory manner.” Otis, 02-0673 at p. 4, 828 So.2d at 715.

As shown by the medical evidence in the record before us, although Mr. Warren’s physical condition did not change between the date the MRI was performed and the date the myelogram was performed, his ability to endure the [ 7pain, sufficiently enough to satisfactorily perform his job duties, was steadily declining. Moreover, it was only after Dr. Landreneau reviewed the myelogram results and confirmed that surgical intervention was necessary that he finally deemed Mr. Warren’s condition to be such that he should not continue to push himself to perform his normal job duties and ordered him to stop working. Prior to that time, even when Mr. Warren specifically questioned Dr. Farries about whether it would be beneficial for him to stop working for a while (because his work activity seemed to aggravate his condition and diminish the effects of the medical treatment he received), Dr. Farries advised that it would not be beneficial. Thus, it is clear from the record before us that although Mr. Warren may have been fully aware of the extent of his injury or physical condition as early as October 2001, when Dr. Farries discussed the results of the MRI scan with him and his treatment options, it is equally clear that he only became aware of or realized that the significance of his condition was such that he could no longer perform his job duties when Dr. Landreneau ordered him to stop working on November 20, 2002.

As observed by this court in Boudreaux v. Angelo Iafrate Construction, 02-0992, p. 5 (La.App. 1st Cir.2/14/03), 848 So.2d 3, 7:

In the case of the retained employee who continues to work with symptoms which might have been held to be disabling (if litigated), but which did not become manifestly disabling to the employee until he was physically forced to quit his work, the disability does not become manifest or “develop” until that date, because to select an earlier date would be dealing in conjecture.

Accordingly, we find no error in the WCJ’s determination that Mr. Warren’s injury developed into a disability on November 20, 2002, the date he was ordered to stop working by Dr. Landreneau, and that his claim for indemnity benefits filed one month later was timely.

In light of Mr. Warren’s abandonment of the sole assignment of error raised in his answer to the appeal and the absence of an allegation that Action Oil’s appeal [¿was frivolous, we conclude that Mr. Warren’s request for an award of attorney fees for the work performed by his counsel in litigating this appeal lacks merit.

CONCLUSION

Accordingly, we find no error in the ruling of the WCJ on the issue of prescription, and we affirm the judgment of the WCJ. All costs of this appeal are assessed to Action Oil Recovery, Inc.

AFFIRMED.

McCLENDON, J., agrees and assigns additional reasons.

McCLENDON,

J., agrees, and assigns additional reasons.

Li respectfully agree with the reasoning of the opinion. It is undisputed that Mr. Warren continued to work in pain. In addition, I note in particular Mr. Warren’s responses when asked to rate his pain, on a scale from one to ten, with ten being the worst, at various times from the date of the injury in March of 2001 until the date he was finally disabled from work, November 20, 2002. At six months after the injury, he rated the pain as being a seven or eight, but he kept working. It increased over time, and by November 19, 2002, he rated it as a ten, and unbearable. At that time, he realized that he could no longer work.

      . Warren v. Action Oil Recovery, 03-2296 (La. App. 1st Cir.12/31/03) (unpublished writ action).

      . Warren v. Action Oil Recovery, 04-0306 (La.3/26/04), 871 So.2d 356.

      . Since Mr. Warren failed to brief this assignment of error, we consider such assignment as having been abandoned. See Uniform Rules, Courts of Appeal, Rule 2-12.4.

      . There is some discrepancy in the record as to the exact date of injury. At trial, Mr. Warren testified that he sustained his injury on March 26, 2001, but in a pre-trial deposition, he declared the date of injury to be March 22, 2001. On his claim form, Mr. Warren simply stated that his work-related accident occurred in March 2001. The parties eventually stipulated that the accident occurred on March 22, 2001.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge, Ad Hoc.

license: Public Domain

text:
    Daniel Edward VERBERNE v. Shantel Marie VERBERNE.
    No. 2005 CA 2644.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2006.

      Charles V. Genco, Amite, for Plain-tiffAppellant, Daniel Edward Verberne.
    Duncan S. Kemp, III, Hammond, for DefendanVAppellee, Shantel Marie Ver-berne.
    Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY and Judge EDWIN A. LOMBARD, serving as judges ad hoc by special appointment of the Louisiana Supreme Court.
   EDWIN A. LOMBARD, Judge, Ad Hoc.

| gPlaintiff/appellant Daniel Edward Ver-berne appeals the judgment of the trial court in favor of his former wife, defendant/appellee Shantal Marie Verberne, increasing his child support obligation for the couple’s minor son. After consideration of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

On May 10, 2002, the appellant filed for a divorce from the appellee. The appellee did not contest the divorce and, accordingly, a default judgment was entered on July 22, 2002, designating the appellee as the domiciliary parent, granting the appellant visitation rights, and ordering the appellant to pay $300.00 per month child support. On December 9, 2003, the appellee filed a Rule to Increase Child Support, petitioning the court to set the appellant’s child support in accordance with the Louisiana Child Support Guidelines, La.Rev. Stat. 9:315 et seq. (“the guidelines”). After hearing testimony and considering the evidence, the trial court entered judgment on July 5, 2005, raising the appellant’s child support obligation to $994.00 per month.

Discussion

On appeal, the appellant raises three assignments of .error. First, in assignments of error 1 & 2, the appellant contends that the trial court erred in |3not deviating from the guidelines because the appellee is living with another man and because the appellee had another child not subject to this action. In his third assignment of error, the appellant contends that the trial court erred in “failing to determine exactly what appellant earned as required by [La.Rev.Stat.] 9:315 et seq. and instead apply [sic] the figure of $87,000 which appeared as a preprinted figure on a self-employment form.”

The standard of review in a child support case is manifest error and, accordingly, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. State, Dept. of Social Services ex rel. D.F. v. L.T., 05-1965 (La.7/6/06), 934 So.2d 687; see also Campbell v. Campbell, 95-1711 (La.App. 1 Cir. 10/10/96) 682 So.2d 312, 316 (upon finding an abuse of discretion, an appellate court can only lower or raise the amount to highest point which was reasonably within the discretion of the trial court). As mandated by the guidelines, children should not become the economic victims of their parents divorce and, accordingly, child support is a continuing obligation of both parents.

In his first two assignments of error, the appellant contends the trial court erred in failing to consider that the appel-lee is living with another man and has another child. Under the guidelines, however, the determination of a parent’s child support obligation is based on the combined adjusted monthly gross income of both parents and, although it is within the trial court’s discretion to consider other factors such as those put forth by appellant, such consideration is not mandated by the guidelines. La.Rev.Stat. 9:315 C(2) & (5)(c). The appellant’s contention is very general in nature and makes no argument as to why the trial court’s failure to consider factors particular to |4this case constitutes an abuse of discretion. Moreover, our review of the record reveals nothing to which supports the appellant’s contentions. Accordingly, the appellant’s arguments in assignments of error 1 & 2 are without merit.

In his third assignment of error, the appellant argues that the trial court was manifestly erroneous in basing its decision on the figure indicated in his IRS forms “instead of determining exactly what Mr. Verberne made .... ” Although the appellant faults the trial court for not determining his exact income, a review of the hearing transcript and the bank records subpoenaed by the appellee suggest that (1) the appellant and his bookkeeper (and current wife) were purposely attempting to obfuscate the actual amount of the appellant’s personal income through intermixing business and personal accounts or (2) the appellant’s business and personal finances are so entangled that the appellant’s actual personal income is matter open to interpretation. At the hearing, the appellant’s counsel conceded to the judge that there were serious discrepancies in the appellant’s income tax return wherein the appellant and his current wife claimed an income of $24,000.00 but paid self-employment tax on $87,000.00. According to appellant’s counsel, “they’re making probably $85,000.00 to $86,000.00 a year.” Accordingly, based on the record before us, we do not find that the trial court was manifestly erroneous in calculating the appellant’s child support obligation based on an annual income of $87,000.00.

Conclusion

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

AFFIRMED.


author: EDWIN A. LOMBARD, Judge Ad Hoc.

text:
    Barbara PILSON v. METROPOLITAN HUMAN SERVICES DISTRICT and Sybil Wilson.
    No. 2005 CA 2253.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2006.

      James E. Stovall, Covington, for Plain-tiflyAppellee, Barbara Pilson.
    Carol L. Haynes, Baton Rouge, for De-fendani/Appellant, LSUHSC-Medical Center of Louisiana at New Orleans.
    Robert R. Boland, Baton Rouge, for Department of State Civil Service Anne Soi-leau.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY and Judge EDWIN A. LOMBARD, serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   EDWIN A. LOMBARD, Judge Ad Hoc.

|aThe plaintiff/appellant, Barbara Pilson, appeals the decision of the Civil Service Commission uphold the summary dismissal of her appeal in this matter. After review of the record in light of the applicable law and arguments of the parties, we affirm the decision of the Civil Service Commission.

Relevant Facts and Procedural History

On February 1, 2005, the appellant, a civil service employee, learned that another applicant had been hired for a position for which she applied. On June 2, 2005, she filed an appeal with the State Civil Service Commission (“the Commission”), alleging discrimination and a violation of La. Rev. Stat 37:2707. The Commission dismissed the appeal as untimely.

Discussion

The appellant argues that the Civil Service Commission erred in summarily dismissing her appeal because she filed a formal grievance on February 14, 2005, and therefore the time period for filing an appeal should have been suspended while the grievance was pending. The appellant contends that because “this matter resembles a disciplinary action” (emphasis added) written notice of her appeal rights should be required.

Pursuant to Civil Service Rule 13.10, an employee may appeal to the Civil Service Commission when she has been subjected to a disciplinary action, a civil service rules violation, or discrimination. Civil Service Rule 13:12 (Delay for Making Appeal) provides in pertinent part:

|8“(a) No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is either (i) received in the office of the Director of the State Department of Civil Service at Baton Rouge, Louisiana, or (ii) is addressed to the Director of the State Department of Civil Service at Baton Rouge, Louisiana, with proper postage affixed, and is dated by the United States Post Office.
* * * * * * *
2. Within thirty (30) calendar days after the date when appellant learned or was aware that the action complained of had occurred when no written notice is required by these Rules or, if required, was given tardily or not at all.

Nothing in the civil service rules provides for an interruption of the time for appeal by the filing of a grievance or taking other non-appellate action and under the jurisprudence of the Louisiana First Circuit Court of Appeals the civil service rules are strictly interpreted. White v. Department of Health and Human Resources, 385 So.2d 400 (La.App. 1 Cir.), writ denied, 386 So.2d 358 (La.1980) (“The Rules, not providing for interruption of the time of appeal, there can be none in the present case.”)

The appellant did not appeal to the State Civil Service Commission within 30 calendar days of learning that another person had been hired for the position which she sought and, thus, under the jurisprudence of the Louisiana First Circuit Court of Appeal we cannot find that the Commission erred in summarily dismissing her appeal as untimely. Accordingly, the judgment of the the Commission is affirmed.

AFFIRMED.

      . Article X, Section 12 of the Louisiana constitution provides in pertinent part,_that "[e]ach city Commission established by Part I of this Article shall have the exclusive power and authority to hear and decide all removal and disciplinaiy cases ...." La. Const. Art. X § 12(b). Decisions of the Commission are reviewable by the court of appeal whose jurisdiction encompasses the locality of the Commission. Butler v. New Orleans Police Department, 2003-2180 (La.App.4Cir. 10/6/04), 885 So.2d 1266, 1268 n. 2.

      . The appellant urges the court to consider this court’s decision in Bethune v. Dept. of Welfare, 541 So.2d 215 (La.App. 4th Cir. 1989), wherein the court reversed the dismissal of appellant’s appeal to the Civil Service Commission as untimely on the "peculiar facts” of the case — the appointing authority, in effect, rescinded prior disciplinary notice by receiving and entertaining appellant’s grievance notice. We do not find that Bethune, a case dealing with a disciplinary job action, is persuasive in this case.


author: DAVID S. GORBATY, Judge Ad Hoe.

text:
    Paul CELESTINE v. POINTE COUPEE PARISH SHERIFF’S OFFICE, Sheriff Paul Raymond Smith & in His Official Capacity as Sheriff & Deputy Ronald Pourciau.
    No. 2005 CA 2229.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2006.

      Todd Comeaux, New Orleans, Ali Shields, Baton Rouge, for PlaintiffiAppel-lant, Paul Celestine.
    Daniel J. Balhoff, Baton Rouge, for Defendant/Appellee, Pointe Coupee Parish Sheriff, Sheriff Paul R. Smith, & Deputy Ronald Pourciau.
    (Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, and Judge EDWIN A. LOMBARD, serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   DAVID S. GORBATY, Judge Ad Hoe.

| aPaul Celestine appeals a judgment rendered against him in favor of defendants, Sheriff Paul R. Smith, in his official capacity as sheriff of Pointe Coupee Parish, and Deputy Ronald Pourciau. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Paul Celestine was arrested by Deputy Ronald Pourciau in the early morning hours of August 26, 2001, for improper lane usage and speeding. He was handcuffed and placed in the rear passenger seat of Deputy Pourciau’s vehicle for transportation to the station. Upon arriving at the station, Deputy Pourciau ordered Mr. Celestine to exit the vehicle, but Mr. Celestine allegedly could not because his legs and feet were caught under the front seat of the vehicle. Deputy Pourciau then allegedly grabbed Mr. Celestine’s legs and turned him so that he could alight from the vehicle, rather than moving the front seat forward. Mr. Celestine claimed that the movement of his legs caused him to injure his back. Despite allegedly reporting his pain to several persons, including Deputy Pourciau, no medical attention was rendered while he was being detained.

Mr. Celestine filed suit against defendants claiming that his alleged injuries were caused by the negligence of the sheriffs department, specifically, the negligence of Deputy Pourciau.

Following a bench trial, the court found that Mr. Celestine had not proven negligence, and that it believed the testimony of Deputy | oPourciau over that of Mr. Celes-tine as to the events of the evening of August 26, 2001. The court dismissed the suit as to Sheriff Smith and Deputy Pour-ciau, with prejudice, and this appeal followed.

DISCUSSION:

The appropriate standard of review for this matter is the manifest error standard. This case is based entirely on the credibility of witnesses and their versions of the events of August 26, 2001. See Bonin v. Ferrellgas, Inc., 03-3024, p. 6-7 (La.7/2/04), 877 So.2d 89, 94-95; Rosell v. ESCO, 549 So.2d 840, 845 (La.1989).

Assignments of Error Nos. 1 and 2:

Mr. Celestine argues that the trial court erred in finding that Deputy Pourciau’s actions in assisting Mr. Celestine did not constitute negligence. He contends that Deputy Pourciau simply could have moved the front seat forward thereby freeing his legs, without having to grab them. Further, the trial court should have determined that it was negligence for Mr. Cel-estine to be left in a cell for over 16 hours without medical help.

Deputy Pourciau testified that he did not touch Mr. Celestine’s legs at any point; rather, when asked to exit the vehicle, Mr. Celestine leaned over onto his left side and freed his own feet from underneath the cage. Once out, he fell slightly into Deputy Pourciau in a non-aggressive manner. As the two approached the outer door of the detention center, Mr. Celestine stumbled again. Deputy Pourciau then placed his right hand on Mr. Celestine’s left shoulder to help escort him.

| ¿Deputy Pourciau also testified that moving the front seat forward would not have afforded Mr. Celestine any more legroom because the cage was bolted to the floor, not the front seat. A photograph submitted into evidence corroborates this testimony.

In his brief, Mr. Celestine attempts to characterize the other witnesses’ testimony as contradictory to that of Deputy Pour-ciau. However, after reading the testimony of the three detention center employees, we find that the trial court did not err in its decision to credit their testimony.

Corporal Estelle Moore testified that she observed Mr. Celestine’s arrival at the detention center via a surveillance camera. She did testify that Deputy Pourciau “helped” Mr. Celestine exit the police unit, but then explained that Deputy Pourciau opened the passenger side door, Mr. Cel-estine got out, staggered, and Deputy Pourciau caught him. She did not at any time testify that Deputy Pourciau touched, pulled or grabbed Mr. Celestine’s legs in an attempt to get him out of the police vehicle.

Michael Donovan was a shift leader at the detention center at the time of this incident. In a written statement given shortly after the incident, Mr. Donovan noted that “[w]hen we were asking questions, [Mr. Celestine] advised that the officer that brought him in had hurt his back when he pushed his legs in the car.” Mr. Donovan testified that he attempted to gather information following the incident while Mr. Celestine was still in a holding cell, including a medical screen before Mr. Celestine could be booked. However, for most of the following 15day, Mr. Celestine would not answer any questions, and was indeed sleeping each time Mr. Donovan approached him. It was not until approximately 7 p.m. that Mr. Celestine began to cooperate. This was shortly before Mr. Celestine was released from the detention center.

Sergeant Brent Plauche testified that he also witnessed Mr. Celestine’s exit from the police vehicle via a surveillance monitor. When he first observed Mr. Cel-estine, his feet were already out of the vehicle and Mr. Celestine appeared to be laying down in the back seat. He then “wiggled through the end, put his feet down, and then pulled himself up.” Sergeant Plauche corroborated Corporal Moore’s testimony that Mr. Celestine then staggered towards Deputy Pourciau. Deputy Pourciau held him up, backed away slightly, and closed the door. As the two approached the door of the detention center, Sergeant Plauche again saw Mr. Celestine fall towards a wall, and Deputy Pourciau catch him to keep him from falling down. Once inside, Deputy Pourciau reported that Mr. Celestine was uncooperative, and refused to give any information to complete the paperwork associated with the arrest. Sergeant Plauche took charge of Mr. Celestine, and placed him in a holding cell. He testified that Mr. Celestine smelled of alcohol and staggered several times on the way to the holding cell. Shortly thereafter, Sergeant Plauche accompanied Deputy Pourciau to the holding cell to give Mr. Celestine the required paperwork associated with a driving while intoxicated arrest; they found Mr. Celestine sleeping in the cell.

|ROn cross-examination, defense counsel entered into evidence a page of a written statement that Sergeant Plauche had made, in which it was noted that Deputy Pourciau had “helped” Mr. Celestine from the vehicle. However, as noted above, Sergeant Plauche had already fully explained on direct examination what he meant by “helped.” Helping Mr. Celestine from the vehicle did not include touching, grabbing or pulling his legs from the vehicle; rather, it meant preventing Mr. Celes-tine from falling each time he staggered. Sergeant Plauche further read from his statement that Mr. Celestine told him his back was hurting and that he wanted to file a complaint. After reminding Mr. Cel-estine that he was the same officer Mr. Celestine had refused to talk to earlier, Mr. Celestine was told that he could contact Captain Robert Harris later that morning to file a complaint.

Based on the above, we find no error in the trial court’s finding that Deputy Pour-ciau’s version of the events of that night was a more credible account, particularly in light of the corroborating evidence by the other detention center employees. No one testified that Deputy Pourciau touched Mr. Celestine in any way as he exited the vehicle that would have caused Mr. Celes-tine to injure his back. The testimony did bolster Deputy Pourciau’s testimony that Mr. Celestine was intoxicated, and was having difficulty walking from the vehicle to the detention center.

Also, as noted in appellees’ brief, trial counsel for Mr. Celestine specifically removed from the court’s consideration the issue ofl7whether it was negligent for Deputy Pourciau to not move the front seat forward thereby giving Mr. Celestine more legroom. The record indicates that defense counsel stated in his closing argument, “I did have a second claim today, a theory that the seat could have been moved forward. But after some really good questions today by defense counsel, that’s not a claim we have.” The trial court, therefore, did not consider this as an element of the negligence claim. We find no error in its doing so.

Assignment of Error No. 3:

In the final assignment of error, Mr. Celestine argues that the trial court erred in considering whether Deputy Pourciau’s actions were malicious. He avers that the medical evidence clearly supports that Deputy Pourciau’s actions in removing him from the police vehicle were the cause in fact of his back injury.

The medical evidence of the cause in fact of the injury is based solely on Mr. Celes-tine’s version of the events as he related them to his doctors. The trial testimony, however, does not support Mr. Celestine’s version of the events. The medical evidence thus does not prove how Mr. Celes-tine injured his back, but merely that his back was somehow injured.

Further, upon reading the trial court’s reasons for judgment, we do not find that the trial court was considering malice as a consideration for its finding of no negligence on the part of Deputy Pourciau. The trial court merely pointed out that Deputy Pourciau knew based on prior incidents that there was limited space in the rear |sseat of his vehicle, and considered Mr. Celestine’s height when he handcuffed him in the front of his body. The trial court placed on the record the standards for a finding of negligence, clearly demonstrating that it was aware of those standards, and then made a finding based on the facts that Deputy Pourciau was not negligent in his handling of Mr. Celestine.

CONCLUSION:

Accordingly, we find no manifest error in the factual findings or the judgment of the trial court.

AFFIRMED.

      . The Pointe Coupee Sheriff's Office was voluntarily dismissed, with prejudice, prior to trial.


author: LEON A. CANNIZZARO, JR., Judge Ad Hoc.

text:
    Henry HORSTMANN v. George A. FARBER.
    No. 2005 CA 2213.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2006.
    F. Timothy Garlick, Folsom, for Plaintiff/Appellee, Henry Horstmann.
    Paul Antoine Lapeyrouse, Chauvin, for Defendant/Appellant, George A. Farber.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge LEON A. CANNIZZARO, Jr., serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   LEON A. CANNIZZARO, JR., Judge Ad Hoc.

| aThis case involves a claim for payment of amounts that the plaintiff, Henry Horst-mann, claimed were owed to him by the defendant, George A. Farber, M.D. The trial court judge rendered a judgment in favor of the plaintiff in the amount of $20,978.26. The judge also awarded attorneys’ fees in the amount of $5,244.57, for a total judgment of $26,222.83 plus costs and interest from the time of judicial demand until paid. Dr. Farber is appealing the judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Horstmann filed suit against Dr. Farber to collect money allegedly owed to Mr. Horstmann by Dr. Farber in connection with an oral agreement between the two men, who had a business relationship for a number of years. Mr. Horstmann operated a horse breeding business for Dr. Farber on a farm that was owned by Dr. Farber. Mr. Horstmann was paid $3,300.00 a month for his services in connection with the breeding operation. Additionally, Dr. Farber permitted Mr. Horstmann to conduct a horse training business of his own at the farm. Mr. Horstmann trained Dr. Farber’s horses, as well as horses owned by others. Mr. Horstmann billed Dr. Farber on a monthly basis for the horse training services that were rendered to Dr. Farber.

In the instant suit only the charges for training Dr. Farber’s horses were at issue. Mr. Horstmann claimed that Dr. Farber owed him $24,620.00. Included in this amount were Mr. Horstmann’s charges for training Dr. Farber’s horses and an invoice from The Ponchatoula Feed & [¡¡Seed Store (the “Feed Store”) in the amount of $3,353.30 for feed that Mr. Horstmann had purchased to feed Dr. Farber’s horses.

Dr. Farber responded to Mr. Horst-mann’s lawsuit by filing an answer denying that he owed any money to Mr. Horst-mann. Dr. Farber also asserted that Mr. Horstmann overcharged him for the training services and that Mr. Horstmann used Dr. Farber’s money to maintain horses other than those owned by Dr. Farber.

At the trial only two witnesses testified. Mr. Horstmann testified, and his wife, Colleen Horstmann, testified.

Mrs. Horstmann testified that she prepared the bills for her husband’s horse training business. She identified the invoices that Mr. Horstmann claimed had not been paid by Dr. Farber. She explained that the monthly invoices contained the training charges for each horse whose name was listed, the number of days each horse was trained, and the daily charge for training each horse. Additionally, the invoice included an itemized list of expenses that were to be paid by Dr. Farber.

Ms. Horstmann further explained that there were two barns that housed horses on Dr. Farber’s farm. One barn held broodmares and their young. The other barn housed the horses that Mr. Horst-mann was training. The food for all of the horses on the farm was purchased in bulk using Dr. Farber’s funds, but under Mr. Horstmann’s agreement with Dr. Farber, Mr. Horstmann assumed the cost of the food that was consumed by the horses in the training barn. Therefore, Dr. Farber was given a credit on the monthly invoices for the cost of any food that was eaten by the horses in the training barn.

|4Mr. Horstmann testified at the trial regarding the services that he performed for Dr. Farber. He said that he ran a horse breeding operation for Dr. Farber and generally operated Dr. Farber’s farm where the breeding operation was conducted. Mr. Horstmann was paid a set amount each month for this work. Mr. Horstmann also trained some of Dr. Far-ber’s horses, and he charged Dr. Farber a daily rate for each horse he trained. The daily rate for training a horse depended on what was involved in training that particular horse. Mr. Horstmann maintained training charts showing what was done with each horse on a daily basis. The training charts were used to prepare the monthly invoices.

In addition to seeking payment of the $20,978.26 reflected on the unpaid invoices, Mr. Horstmann also sought reimbursement from Dr. Farber for a bill from the Feed Store. Mr. Horstmann explained that Dr. Farber declared bankruptcy and that Dr. Farber could no longer purchase feed on credit from his usual supplier. Therefore, because the horses on the farm had to be fed, Mr. Horstmann opened an account in his name at the Feed Store so that he could buy feed for the horses. Mr. Horstmann testified that the feed for which the Feed Store had billed him $3,533.30 was used to feed Dr. Farber’s horses. Additionally, he said that Dr. Far-ber was given a credit on the applicable monthly invoices for any of the feed that was given to horses in the training barn. Thus, Mr. Horstmann contended that he was owed reimbursement in the amount of $3,533.30 for the feed that he had purchased from the Feed Store.

Finally, Mr. Horstmann testified that he charged Dr. Farber $5.00 a day for taking care of the yearlings that were housed in the training barn, | seven though they were not being trained. Mr. Horstmann explained that the reason the yearlings were in the training barn was that once they had been weaned, they had to be separated from their mothers.

The yearlings were relocated to the training barn, where they could not see their mothers, because if they were anywhere near the mares, “the babies would stall walk themselves to death, break through a fence, do whatever they had to do.” Because it was Mr. Horstmann’s responsibility to assume the cost of feeding and maintaining the horses in the training barn, he charged Dr. Farber $5.00 a day to cover the expenses attributable to each yearling housed in that barn.

After Mr. and Mrs. Horstmann had testified, the trial court judge ruled that Mr. Horstmann had proved that he was entitled $20.978.26, the unpaid amount on the invoices that Mr. Horstmann had submitted to Dr. Farber. The judge also awarded attorneys’ fees in the amount of twenty-five percent of the invoice amount, because she found that the payment sought by Mr. Horstmann was payment on an open account. With respect to the Feed Store bill, the judge found that Mr. Horstmann had not carried his burden of proof, because he did not show how much of the feed that he purchased from the Feed Store was consumed by the horses in the training barn and how much was consumed by the horses in the other barn. Therefore, Mr. 1 fiHorstmann failed to prove that he was entitled to reimbursement from Dr. Farber on this amount.

DISCUSSION

Standard of Review

In Rosell v. ESCO, 549 So.2d 840 (La. 1989), the Louisiana Supreme Court stated that it is well settled that an appellate court may set aside a factual finding of a trial court or jury only where the finding was based on a “manifest error” or was “clearly wrong”. Id. at 844. Further, where there is conflict in the testimony, a trial court’s or a jury’s reasonable evaluations of credibility and reasonable inference of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court or jury. Id. Finally, where there are two permissible views of the evidence, the trial court’s or jury’s choice between them cannot be manifestly erroneous or clearly wrong. Id. See also Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771.

Assignments of Error

Dr. Farber has raised three assignments of error. First, he contends that Mr. Horstmann did not carry his burden of proof at the trial. Second, he asserts that the testimony of the witnesses was not credible. Third, he claims that the trial court erred in awarding attorneys’ fees to Mr. Horstmann. The third assignment of error is moot, however, because Mr. Horstmann has conceded in his brief that “[cjlearly, the Appellee is not entitled to an attorney fee award.” Therefore, we will consider only the first two 17assignments of error raised by Dr. Farber and amend the trial court judgment to delete the award of attorneys’ fees.

Assignment of Error No. 1: The trial cotirt erred in rendering its judgment against Dr. Farber, because Mr. Horst-mann failed to carry his burden of proof by a preponderance of the evidence.

Dr. Farber asserts that the evidence and the testimony at the trial failed to establish that Mr. Horstmann maintained his accounts in the ordinary course of business. Additionally, Dr. Farber claims that Mr. Horstmann failed to present evidence to document the amounts he claimed were owed by Dr. Farber.

Both Mr. and Mrs. Horstmann testified regarding the invoices that were unpaid. Mrs. Horstmann testified in detail how the monthly invoices were prepared and what the invoices covered. Dr. Farber asserted affirmative defenses to Mr. Horstmann’s claims, but no evidence was presented at the trial to support the defenses. Although Dr. Farber’s attorney tried to discredit the testimony of Mr. and Mrs. Horstmann on cross-examination, there was no evidence or testimony on behalf of Dr. Farber to support the claim that the invoices introduced into evidence were inaccurate.

The trial court judge made a factual finding that the unpaid amounts shown on the invoices were accurate and were supported by the testimony and by the documents introduced into evidence at the trial. The trial court judge did not, however, require Dr. Farber to reimburse Mr. Horstmann for the amount Mr. Horstmann paid to the Feed Store, because the judge found that Mr. Horstmann had not carried his burden of proof with respect to that aspect of his claim. Mr. Horstmann did not present sufficient evidence to show the amount of feed that was used for Dr. Farber’s horses.

| sIn reviewing the trial court’s decision, we are bound by the judge’s factual findings unless they are clearly wrong or manifestly erroneous. There is ample evidence in the record to support the trial court’s findings, and there is nothing to indicate that the findings are either clearly wrong or manifestly erroneous.

We find no error in the trial court judge’s decision. This assignment of error is without merit.

Assignment of Error No. 2: The testimony of the witnesses was not credible nor did the witnesses’ testimony support the accuracy of the statements introduced in support of the debt.

The credibility of witnesses is something that can best be determined by the trial court judge. See Lirette v. State Farm Ins., 568 So.2d 850, 852 (La.1990), where the Louisiana Supreme Court held that the “manifest error-clearly wrong” standard of review demands great deference to the trier of fact’s findings regarding the credibility of witnesses, because “only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.”

The trial court judge was able to observe the demeanor of Mr. and Mrs. Horstmann when they testified, and the judge obviously believed the testimony of the witnesses regarding the accuracy of the unpaid amounts shown on the invoices introduced into evidence. There is nothing in the record to indicate that the witnesses were not credible.

We must defer to the trial court’s determination regarding the credibility of the witnesses. This assignment of error is without merit.

I aCONCLUSION

Mr. Horstmann has conceded that he is not entitled to collect attorneys’ fees in this case. Therefore, we hereby amend the trial court judgment to delete the award of attorneys’ fees in the amount of $5,244.57. The judgment of the trial court, as so amended, is hereby affirmed.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

      . During the course of the instant litigation, Mr. Horstmann and his wife instituted a bankruptcy proceeding in federal court. The legal interest in the litigation was transferred to the bankruptcy trustee, and the trustee was joined as a plaintiff in this case.

      . La. R.S. 9:2781(A) provides in relevant part: When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.


author: CHARLES R. JONES, Judge Ad Hoc.

text:
    Michael E. SULLIVAN v. Ms. Priscillia PITRE, Doc Records Analyst, Allen Correctional Center, Richard Stalder D.O.C. Secretary, Linda Ramsay.
    No. 2005 CA 2361.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2006.

      Michael Sullivan, Evergreen, In Proper Person Plaintiff/Appellant, Michael Sullivan.
    William Kline, Baton Rouge, for Defendant/Appellee, Richard Stadler.
    (Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   CHARLES R. JONES, Judge Ad Hoc.

| gThe Appellant, Michael Sullivan, has filed the instant appeal seeking Judicial Review of the final agency’s decision rendered under Administrative Remedy Procedure No. ACC-2003-446. Sullivan contends that a strict reading of La. R.S. 15:571.3(D) (Act 150) reveals that only inmates with two convictions for a crime of violence may be denied good time eligibility under the express language of the statute. Thus, he argues that because his latest conviction constitutes a fourth offense crime of violence, the Department of Corrections is not allowed to apply the provisions of La. R.S. 15:571.3(D) as amended by Acts 1994, 3d Ex.Sess., No. 150 Section 1 (Act 150), to deny him good time. We AFFIRM the judgment of dismissal by the district court.

Sullivan filed an administrative remedy procedure (ARP) contesting the Louisiana Department of Public Safety and Corrections’ (DPSC) refusal to credit him with the accrual of good time. Sullivan’s ARP was denied at all three levels of review by DPSC, which maintained that Sullivan was ineligible to earn good time because the statute provides that diminution of sentence shall not be allowed an inmate if the instant offense is a second offense crime of violence as defined by La. R.S. 14:2(13), committed on or after August 27, 1994; and because his other crimes of violence were committed prior to August 27, 1994, before Act 150 was enacted. Thus, his instant offense, first degree robbery, was committed after August 27, 1994, [3which constitutes his second conviction for a crime of violence.

After exhausting his administrative remedies to no avail, Sullivan filed suit in the 19th Judicial District Court seeking judicial review of DPSC’s decision. DPSC filed an answer denying Sullivan’s allegations. A commissioner appointed by the district court reviewed the matter and issued a report recommending that the DPSC’s decision be affirmed, that Sullivan’s petition be dismissed with prejudice at Sullivan’s cost, and that Sullivan be assessed a strike for filing a frivolous request for judicial review. The district court rendered judgment in conformity with the commissioner’s recommendation, which judgment Sullivan now appeals.

Sullivan is currently serving a thirty (30) year sentence for First Degree Robbery. In Sullivan’s sole assignment of error, he contends that the Records Office has misapplied La. R.S. 15:571.S(D) as amended by Acts 1994, 3d Ex.Sess., No. 150 Section 1, to this sentence, thus denying him the opportunity to earn diminution of sentence credits. He further argues that this offense is his “second crime of violence.”

Louisiana Revised Statute 15:571.3(D) (Act 150) provides in pertinent part that:

Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if the instant offense is a second offense crime of violence as defined in R.S. 14:2(13)... (Emphasis added).

The master prison record reflects three prior convictions of Sullivan for crimes of violence; Armed Robbery, St. Mary Parish, sentenced 08/26/91; Simple Robbery and Attempted Simple Robbery, Lafayette Parish, sentenced 1409/15/92. Sullivan therefore argues that this is his fourth offense crime of violence, not his second offense. He asserts that the Department of Corrections’ interpretation of the statute only provides authority to deny third and subsequent crime of violence offenders the eligibility to earn diminution of sentence credits. We find no merit in this argument.

Sullivan contends that R.S. 15:571.3(D) only denies good time eligibility for inmates whose instant offense is a second crime of violence as defined by R.S. 14:2(13), and he argues that the Department of Corrections is not allowed to apply the provisions of R.S. 15:571.3(D) to deny inmates diminution of sentence credits when the instant offense is a third, or subsequent offense crime of violence. We disagree.

The starting point in interpreting any statute is the language of the statute itself. Theriot v. Midland Risk Ins. Co., 95-2895, 694 So.2d 184 (La.1997); Touchard v. Williams, 617 So.2d 885 (La.1993). Where a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written without further interpretation in search of legislative intent. La. Civ.Code Article 9; New Orleans Rosenbush Claims Serv., Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538 (La.1995); Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So.2d 1268. It is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984). It is presumed that the legislature understands the effect and meaning of the words it uses in a statute. Clark v. Board of Commissioners of the Port of New Orleans, 422 So.2d 247 (La.App. 4 Cir. 1982). The Legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. Theriot v. Midland Risk Ins. Co., 694 So.2d 184 (La.1997).

Sullivan contends that the language of Act 150 is unambiguous and clear that diminution of sentence credits shall only be denied those inmates whose instant offense is a second offense crime of violence ... not third or subsequent offense crimes of violence. However, we find that the clear language of the statute provides authority to DPSC to deny diminution of sentence credits to inmates convicted of two or more crimes of violence as defined by La.-R.S. 14:2(13). Moreover, we find that Sullivan’s interpretation of R.S. 15:571.3(D) leads to an absurd result clearly not intended by the legislature.

The purpose of the statute is to deny good time eligibility for inmates with multiple convictions for crimes of violence. Sullivan’s argument ignores the fact that he does indeed have a second conviction for a crime of violence. The legislature did not intend for inmates to be rewarded by receiving good time eligibility for more than two convictions for crimes of violence.

DECREE

Accordingly, we find DPSC acted properly in denying Sullivan’s right to earn good time based on his having been convicted of a second offense crime of violence as defined by La. R.S. 14:2(13). We AFFIRM the judgment of the dismissal by the district court.

AFFIRMED.

      . LSA-R.S. 14:2(13) defines First Degree Robbery as a crime of violence.


author: MURRAY, J.

text:
    Derrick CURRY v. Burl CAIN, Warden, Louisiana State Penitentiary.
    No. 2005 CA 2251.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 2006.

      Derrick Curry, Angola, In Proper Person PlaintiffAppellant, Derrick Curry.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge LEON A. CANNIZZARO, Jr., serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   MURRAY, J.

LThe plaintiff, Derrick W. Curry, is an inmate sentenced to the Department of Public Safety and 'Corrections (“DPSC”) and confined at the Louisiana State Penitentiary at Angola, Louisiana (“LSP”). Mr. Curry initiated a lost property claim under the Corrections Administrative Remedy Procedure (“CARP”), La. R.S. 15:1177, et seq, claiming that prison personnel were responsible for losing his personal property. His claim was denied at both administrative levels of review. At the first level, the Warden of the LSP denied his claim. At the second level, the Secretary of the DPSC denied his claim. As provided for under La. R.S. 15:1177, Mr. Curry then filed a petition for judicial review of the Secretary’s decision in the Nineteenth Judicial District Court. The district court, adopting the Commissioner’s recommendation, affirmed the adverse administrative decision. From the district court’s decision, Mr. Curry filed this appeal pursuant to La. R.S. 15:1177(A)(10). For the reasons that follow, we affirm in part, modify in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On July 24, 2003, Mr. Curry, along with several other inmates, was transferred from one facility to another within Angola — from Camp J to |2Camp D. Although Mr. Curry acknowledges signing an inventory sheet for his personal property on that date, he claims that he was never given the opportunity to check his property before signing for it. Later that day when he received his property, he claims that he discovered a substantial amount of it was missing. On that same day, Mr. Curry wrote a letter to the Warden regarding his missing property. In his letter, Mr. Curry listed over two-dozen items of missing property. The missing items include various clothing and photographs. Mr. Curry’s July 24, 2003 letter to the Warden was treated as a CARP claim and assigned Property Claim No. PC-2003-1872.

On September 29, 2003, the Warden denied Mr. Curry’s claim for reimbursement, settlement, or replacement of lost personal property. In so doing, the Warden provided the following reasons:

The investigation into your claim revealed nothing to substantiate your claim. You have provided no proof of loss and the investigation revealed nothing to support your claim.
You have received all of the property placed in storage for you at Camp J. There is nothing in the record to indicate that you lost any property.

Dissatisfied with that decision, Mr. Curry appealed to the Secretary of the DPSC.

On November 26, 2003, the Secretary rendered its decision denying payment of Mr. Curry’s lost property claim and affirming the Warden’s decision. In so doing, the Secretary provided the following reasons:

You claim that after being transferred from Cam[p] J to Camp D on 7/24/03, several of your property items came up missing. You claim that you were made to sign for the receipt of your property prior to the receipt and inventory of your items.
13Your concerns were investigated at the institutional level. Nothing could be found to support your allegations. On 10/25/02, you signed for two locker boxes of property from Main Prison. This property was divided into a Level II bundle, which you signed for on 11/20/02, and a Level III bundle which you signed for on 4/10/03. There was also a “can’t have” bundle which was inventoried on 11/21/02. That bundle was signed for by you on 7/24/03. No additional property was found in Camp J containing your name. You have failed to prove that a loss actually occurred or that staff is responsible for the alleged loss. Your claims were unsubstantiated.

As such, your Lost Property Claim is denied.

On January 16, 2004, Mr. Curry filed a petition for judicial review in the district court seeking the following relief: (i) order a thorough and complete search of the Camp J Property Room; (ii) reimbursement, settlement, and replacement of his property; and (iii) any other relief to which he is entitled. Following two hearings, the Commissioner rendered a report recommending the district court affirm the Secretary’s decision and dismiss Mr. Curry’s claim with prejudice at his cost. In his report, the Commissioner stated:

[Mr. Curry] states in the record (and during oral argument) that a prison correctional officer (Lt.Mills) “had” him (and other unnamed inmates) sign for receipt of property without giving him (or them) a chance to check and see if all of his possessions were in the bundles. He does not state that he requested to review the property placed in the bags prior to signing the receipt, and there is no other evidence to support the Petitioner’s statement or claim.

The Commissioner further stated that “a review of the record shows that there is no evidence in the record to support a finding that the Petitioner owned or possessed the items of property other than those listed on the inventory sheets in the record at the time of the transfers.” The Commissioner still further stated that “[w]hether there is more property unaccounted for is a matter that may be in dispute, but there is insufficient | ¿evidence in the record to support a finding that additional property, unaccounted for, exists.”

Adopting the Commissioner’s reasons and recommendation, the district court affirmed the Secretary’s decision and dismissed this appeal with prejudice at Mr. Curry’s cost. This appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Curry asserts the following three assignments of error:

(1) The district court erred by failing to remand the case back to the Warden’s level after appellant’s motion to expand was granted.
(2) The district court’s dismissal of appellant’s petition was manifestly erroneous.
(3) The district court’s dismissal of appellant’s petition was arbitrary, capricious, and an abuse of discretion.

STANDARD OF REVIEW

Judicial review of inmate lost property claims is governed by La. R.S. 15:1177 of the CARP. Vincent v. State Dep’t of Public Safety and Corrections, 2002-2444 (La.App. 1 Cir. 6/6/03), 858 So.2d 494. Under the statutory scheme provided by the CARP, “[judicial] review is confined to oral argument (which the court has discretion to grant or deny), based on the record made up in the administrative remedy proceeding, although the court may order that additional evidence be taken.” Pope v. State, 1999-2559, p. 6 (La.6/29/01), 792 So.2d 713, 716. Under the CARP, judicial review is also limited to “the issues presented in the petition for review and the administrative request filed at the agency level.” La. R.S. 15:1177(A)(5).

A reviewing court may reverse or modify an administrative decision only if substantial rights of the appellant have been prejudiced because the administrative decisions or findings are: (1) in violation of constitutional or |Bstatutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error or law; (5) arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Mingo v. Stalder, 1998-2798, pp. 3-4 (La.App. 1 Cir. 9/24/99), 757 So.2d 709, 710-11 (citing La. R.S. 15:1177(A)(9)).

As noted, this appeal is taken from the district court’s decision pursuant to La. R.S. 15:1177(A)(10), which provides that “[a]n aggrieved party may appeal a final judgment of the district court to the appropriate court of appeal.”

DISCUSSION

Mr. Curry’s first assignment of error is that the district court erred in failing to remand to the Warden level for reconsideration after granting his motion to expand the record to include two inventory sheets he filed that were not previously included in the administrative record. One of those inventory sheets he introduced is dated July 11, 2003 and inventoried a hand brace. Mr. Curry claims that he never signed for the hand brace and that it is still in the Camp J Property Room. Mr. Curry points out that the Commissioner stated on the record that if Mr. Curry’s motion to expand was granted, a remand to the administrative level would be required. Mr. Curry contends that the Commissioner erred in granting his motion to expand the record, yet failing to remand.

| fiWe find the Commissioner erred and exceeded the authority of the district court under the CARP by expanding the record and allowing evidence to be introduced at the district court level. See McDowell v. Taylor, 1999-1587 (La.App. 1 Cir. 6/23/00), 762 So.2d 1149 (finding the district court exceeded its authority in taking testimony at the hearing). Under the statutory framework established by the CARP, the district court functions like an appellate court. “[T]he opportunity for the parties to present evidence occurs at the administrative level, not at the trial court level, and review by the trial court is limited to the record established at the administrative level, absent alleged irregularities in the procedure.” Robinson v. Stalder, 1998-0558, p. 4 (La.App. 2 Cir. 4/1/99), 734 So.2d 810, 812 (citing La. R.S. 15:1177(A)(5)).

Although we find the district court erred in expanding the record, we do not find it necessary at this juncture to remand to the trial or administrative level for an entirely new proceeding. Rather, we find it necessary to remand to the trial level for a limited purpose—for the trial court to remand to the administrative level to allow Mr. Curry to introduce the July 11, 2003 inventory sheet into evidence. At the administrative level, Mr. Curry can then present his claim that there is one item that he neither signed for nor received—a hand brace that was inventoried on July 11, 2003. We emphasize, however, that the remand is for the limited purpose of allowing Mr. Curry to introduce at the administrative level evidence regarding his hand brace. Confining our judicial review of the remainder of 17his claim to the evidence in the administrative record, we consider Mr. Curry’s other two assignments of error.

Mr. Curry’s second assignment of error is that the district court was manifestly erroneous in affirming the Secretary’s decision dismissing his claim. Mr. Curry acknowledges that he signed for all of his property, but contends that his signature was obtained by fraud or trickery. He further contends that a substantial amount of his property is missing and that prison personnel have not conducted a thorough search of the Camp J Property Room for his missing property. Although we sympathize with Mr. Curry, we find the issue presented in this case involves a credibility call. Given that the record supports the Secretary’s decision, we cannot say that decision, which the district court affirmed, is manifestly erroneous.

Mr. Curry’s final assignment of error is that the district court abused its discretion in affirming the Secretary’s de-cisión. Mr. Curry asserts a due process right to his property. To the extent he is asserting a constitutional deprivation of property claim, we note that his claim at the administrative level was a generic loss of property claim and not a constitutional deprivation of property claim. See Vincent, 2002-2444 at p. 5, 858 So.2d at 496 (citing Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984)). We decline to consider a claim raised for the first time on appeal.

^Summarizing, we find it necessary to remand for the limited purpose of allowing Mr. Curry to introduce the July 11, 2003 inventory sheet and to present his claim regarding his hand brace. Insofar as the remainder of Mr. Curry’s claim, we find the Secretary’s decision, which the district court affirmed, to dismiss Mr. Curry’s claim at his costs is neither manifestly erroneous nor an abuse of discretion.

DECREE

For the forgoing reasons, we modify the Secretary’s decision to order a limited remand consistent with the views expressed in this opinion. In all other respects, the Secretary’s decision dismissing Mr. Curry’s claim at his costs is affirmed.

AFFIRMED IN PART; MODIFIED IN PART; AND REMANDED.

      . The offices of the commissioner of the Nineteenth Judicial District Court were created by La. R.S. 13:711. The commissioners hear and recommend the disposition of criminal and civil proceedings arising out of the incarceration of state inmates. La. R.S. 13:713. A commissioner's written findings and recommendations are submitted to a trial judge who may accept, reject, or modify them. Id.

      . The second inventory sheet is dated March 20, 2004, which is months after the missing properly claim at issue was filed. Mr. Curry does not mention this inventory sheet in his appeal.

      . The CARP expressly provides that the trial court "may order that additional evidence be taken before the agency upon conditions determined by the court.” La. R.S. 15:1177(A)(4).

      .As noted above, Mr. Curry contends that he did not sign for or receive one item—the hand brace that was inventoried on July 11, 2003. Given our decision to remand, his claim regarding the hand brace is not before us.

      . Although Mr. Curry again, relies on the July 11th inventory sheet regarding the hand brace, his claim regarding the hand brace is not before us.


author: KUHN, J.

text:
    The BOARD OF COMMISSIONERS OF The HAMMOND AREA ECONOMIC AND INDUSTRIAL DEVELOPMENT DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS, CITIZENS OF The CITY OF HAMMOND and of the Hammond Area Economic and Industrial Development District and Non-Residents Owning Property or Subject to Taxation in Said City or District, and all Other Persons Interested in or Affected in any Way by the Issuance of not to Exceed $15,000,000 of Taxable Revenue Bonds, (Louisiana Hospital Center, L.L.C.), Series 2004, for the Purpose of Financing the Acquisition, Construction and Equipping of a Hospital.
    No. 2006 CA 1832.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 2006.
    Writ Denied Nov. 3, 2006.

      T. Jay Seale, III, Glen R. Galbraith, Ashley C. Atchison, Hammond, and Eric A. Holden, New Orleans, La., Counsel for Plaintiff/Appellee, The Board of Commissioners of the Hammond Area Economic and Industrial Development District.
    Alton B. Lewis, Shaan M. Aucoin, Hammond, Counsel for Defendant/Appellant, Hospital Service District No. 1 of Tangipa-hoa Parish d/b/a North Oaks Medical Center.
    Stephen P. Bruno, New Orleans, Counsel for Third Party Defendant/Appellee Louisiana Hospital Center, L.L.C. and G.E. Commercial Finance Property Corp.
    Stephanie B. Laborde, Angela W. Adolph, Baton Rouge, Amicus Curiae, Community Hospital Coalition, Inc.
    Before: PARRO, KUHN, PETTIGREW, GAIDRY, and WELCH, JJ.
   KUHN, J.

|sThis is an appeal of two judgments rendered in a bond validation proceeding. We have treated this appeal expeditiously, as mandated by La. R.S. 13:5128 of the Bond Validation Act. We dismiss the appeal as untimely.

FACTS AND PROCEDURAL HISTORY

The Hammond Area Economic and Industrial Development District (HAEIDD) is a political subdivision of the State of Louisiana, organized pursuant to the provisions of La. R.S. 33:130.611 et seq., and a “governmental unit” within the meaning of La. R.S. 13:5121(2). In accordance with La. R.S. 33:130.613(4) and (5) and La. R.S. 39:1430, HAEIDD has the authority to issue revenue bonds. After public hearings, several resolutions, and application to the Louisiana State Bond Commission, on April 21, 2005, the State Bond Commission adopted a resolution approving HAEIDD’s issuance of not to exceed $15,000,000 of HAEIDD Revenue Bonds (Louisiana Hospital Center, L.L.C. Project) Series 2005. It is the validity of these hospital project bonds that is the subject of this litigation. On May 6, 2005, the HAEIDD Board of Commissioners (the HAEIDD Board) filed a petition for, motion for judgment, seeking validation of the bonds under the provisions of La. R.S. 13:5121 et seq., the Bond Validation Act. Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Medical Center (North Oaks) filed the only opposition to the suit in the form of an answer. On March 1, 2006, North Oaks filed a |4reconventional demand and third party demand naming the HAEIDD Board and the Louisiana Hospital Center, L.L.C. as defendants.

On June 12, 2006, the trial court signed a judgment granting the HAEIDD Board’s exception raising the objection of no right of action and dismissing North Oaks’s re-conventional demand. On August 22, 2006, a second judgment was signed. Therein, the trial court: (1) denied North Oaks’s motion for new trial in regard to the June 12, 2006, judgment; (2) struck North Oaks’s answer; (3) declared the bonds valid; and (4) issued a permanent injunction prohibiting all defendants from instituting any action contesting the validity of the hospital project bonds.

On August 24, 2006, North Oaks filed a petition for appeal of the June 12 and August 22 judgments. The record was certified to this court on September 14, 2006, and on September 15, 2006, North Oaks filed its brief with this court.

Also on September 15, 2006, the HAEIDD Board filed a motion to dismiss North Oaks’s appeal. Therein, the HAEIDD Board argued that although North Oaks’s petition for appeal was timely filed in regard to the August 22 judgment, it was untimely in regard to the June 12, 2006, judgment. The HAEIDD Board also argued that, because North Oaks failed to timely have the record certified to this court and failed to timely file its brief, the appeal should be dismissed.

DISCUSSION

Louisiana Revised Statutes 13:5128 states in pertinent part that:

| No appeal to the court of appeal ... shall be allowed unless the petition therefor is filed within ten days from the date on which the judgment of the court is entered and only if the party taking the appeal has the record certified to the proper appellate court and his brief filed therein within twenty days from the date on which the judgment of the court is entered, or such shorter time as may be required by the appellate court. (Emphasis supplied.)

Of the two judgments North Oaks challenges, the last judgment was signed and filed into the record, i.e. “entered,” on August 22, 2006. The district court record was certified and lodged with this court on September 14, and appellant’s brief was filed with this court on September 15. Neither of these actions happened within twenty days of the entry of the August 22 judgment.

The Third Circuit Court of Appeal has addressed the mandatory nature of La. R.S. 13:5128 in BellSouth Telecommunications, Inc. v. City of Lafayette, 2005-1478 (La.App. 3 Cir. 1/5/06), 919 So.2d 844. Therein, although the district court timely certified the record to the appellate court, the appellants’ brief was filed two days past the twenty-day deadline. The third circuit counted the twenty days from the signing of the judgment. After quoting La. R.S. 13:5128 and emphasizing the mandatory language therein, the court held:

In legislation, “[t]he word ‘shall’ is mandatory[.]” La. R.S. 1:3. This court is without authority to disregard the clear and unambiguous language of La. R.S. 13:5128. See La. R.S. 1:4. The record reflects that [appellants] have failed to perfect a timely appeal in accordance with La. R.S. 13:5128. The appeal is not properly before this court and is, therefore, dismissed.

BellSouth, 919 So.2d at 861.

RThe requisite actions that must be taken to perfect an appeal in a bond validation suit are governed by a special statute, La. R.S. 13:5128, and the specific procedures provided for therein are based on the legislature’s recognition of the need for expedited treatment in this type of proceeding. When an appellant fails to timely take and perfect his appeal, the appellate court lacks jurisdiction to hear the appeal. See River Cities Construction Co., Inc. v. Barnard & Burk, Inc., 444 So.2d 1260, 1268 (La.App. 1st Cir.1983), units denied, 446 So.2d 1223 and 446 So.2d 1226 (La.1984). For this reason, the appeal must be dismissed.

CONCLUSION

Appellant failed to comply with the mandatory provisions of La. R.S. 13:5128. The appeal is untimely, and this court lacks jurisdiction. Accordingly, appellee’s motion to dismiss the appeal is granted, and the appeal is dismissed. See La.Code Civ. P. art. 2162. Costs of this appeal in the amount of $1480.50 are assessed against the appellant, Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Medical Center.

APPEAL DISMISSED.

      . North Oaks is a political subdivision of the state. La. R.S. 46:1064 A.

      . Although signed June 12, 2006, the judgment was not filed into the record until June 13, 2006.

      . On October 5, 2006, we granted the Community Hospital Coalition, Inc.’s motion for leave to file an amicus curiae brief.

      .Clearly, if an appeal from the August 22, 2006, judgment is untimely, then an appeal from the June 12, 2006, judgment is untimely.


author: THOMAS F. DALEY, Judge.

text:
    Jeffery W. CRAYTON Individually and on Behalf of His Minor Children, Scott Crayton, Matthew Crayton and Margaret Crayton, and His Wife Angela Payne Crayton v. CENTRAL STORAGE CENTER, LLC, Mesa General Contractors LLC, and Otis Elevator Company.
    No. 06-CA-441.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 17, 2006.

      Richard D. McShan, McShan Law Firm, Amite, LA, for Plaintiffs/Appellants.
    John I. Hulse, IV, James A. Oswald, Hulse & Wanek, New Orleans, LA, for Defendants/Appellees, Central Storage Center, LLC and Mesa General Contractors, LLC.
    John K. Nieset, Christovich & Kearney, LLP, New Orleans, LA, for Defendani/Ap-pellee, Otis Elevator Company.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

| /Die plaintiff has appealed the trial court’s grant of summary judgment in favor of the defendants. For the reasons that follow, we affirm the judgment of the trial court.

FACTS:

On May 18, 2000, plaintiff, Jeffrey Cray-ton, was employed by All American Metal (All American), which had contracted to build a storage facility for Central Storage, LLC (Central Storage). As plaintiff was working on the second floor of the structure with a fellow employee stacking 14-foot-long sheets of metal, he fell into an unprotected opening to the floor below. Plaintiff suffered injuries to his wrist, heel, ankle, and back.

Plaintiff filed suit against Central Storage, Mesa General Contractors, LLC (Mesa), and Otis Elevator Company (Otis) on May 15, 2001. Plaintiff alleged that Central Storage was owner of the property, Mesa was constructing the building, and Otis had provided the specifications for the unprotected elevator shaft into 14which plaintiff fell. Plaintiff alleged that the defendants failed to take sufficient steps to ensure the safety of the workers, to notify the workers of the unprotected elevator shaft, failed to properly supervise the workers, and was negligent in allowing untrained workers to enter this incomplete worksite.

All defendants filed Motions for Summary Judgments that were granted by the trial court. This timely appeal followed.

LAW AND DISCUSSION:

A Motion for Summary Judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 2004-0229 (La.App. 1st Cir.9/17/04), 885 So.2d 1241. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof is on the mover to show that he is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2) If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the Motion for Summary Judgment, the mover need only 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. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. Id.

LOn appeal in determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

In its Motion for Summary Judgment, Central Storage alleges it should be granted summary judgment on two separate bases. First, Central Storage argues it was the statutory employer of plaintiff and thus is immune from tort liability. Central Storage explains that it was in the business of renting storage space to customers and contracted with All American to erect a building containing storage spaces to be rented to its customers. Central Storage argues that since the construction of this building was within its trade, business, or occupation, it is deemed to be the statutory employer of plaintiff.

Second, Central Storage argues that it was merely the property owner of the land upon which the building was being constructed. It entered into a contract with All American to erect the building and cannot be held hable for the negligence of this independent contractor. In support of this position, Central Storage cites the case of Sims v. Cefolia, 04-843 (La.App. 5 Cir. 11/30/04), 890 So.2d 626, writ denied, 2005-0005, (La.3/11/05), 896 So.2d 73. In Sims, Iberic owned an apartment complex managed by co-defendant, Carefree Realty. Carefree Realty contracted with WCDI to perform plumbing work. Two minor workers of WCDI were injured during the course of the work. Suit was filed against WCDI, Iberic, and Carefree. Iberic and Carefree filed Motions for Summary Judgment claiming they could not be liable for the torts of WDIC, an independent contractor. In affirming the grant of summary judgment, this Court looked at several factors to determine whether the relationship of principal and independent contractor existed, 1 fiincluding: (1) whether there was a valid contract between the parties, (2) whether the work being done was of an independent nature such that the contractor may employ non-exclusive means in accomplishing it, (3) whether the contract called for specific piecework as a unit to be done according to the independent contractor’s own methods without being subject to the control and direction of the principal, except as to the result of the services rendered, (4) whether there was a specific price for the overall undertaking agreed upon;, and (5) whether the duration of the work was for a specific time and not subject to termination or discontinuation at the will of either side without a corresponding liability for its breach. Taking these factors into account, this Court found WCDI was an independent contractor. This Court went on to find that the two exceptions to the independent contractor defense, (1) a property owner cannot avoid liability if he exercises control over the contractor’s method of performing the work or gives express or implied authorization to an unsafe practice, and (2) a property owner may not avoid liability for the actions of an independent contractor if the work undertaken is inherently or intrinsically dangerous or ultra hazardous, were not met in this case.

In support of its Motion for Summary Judgment, Central Storage submitted the contract between it and All American and portions of plaintiffs deposition. Our review of these documents indicates (1) there is a valid contract between Central Storage and All American, which provides that (2) All American was free to employ non-exclusive means to construct the building, (3) the building was being built according to All American’s methods without being subject to the control and directions of Central Storage, except as to the result of the services rendered, (4) the contract contains a specific price for the work, (5) the duration of the work is for a specific time and is not subject to termination or discontinuance at [7the will of either side without a corresponding liability for its breach. Thus, we find all of the factors necessary to form a relationship with Central Storage as the principal and All American as the independent contractor are met. There is nothing to indicate the exceptions to the independent contractor defense would apply as there is no indication that Central Storage exercised control over All American’s method of erecting the building and the work was not inherently dangerous. Accordingly, there is no basis upon which to find Central Storage liable for any alleged negligence of the independent contractor All American. Therefore, the trial court correctly granted summary judgment in favor of Central Storage.

In its Motion for Summary Judgment, Mesa acknowledged that it was a contractor, but stated it was not involved in the erection of the building on Central Storage’s property. As explained in the affidavit by Fred Mesa, he is the managing member of both Central Storage and Mesa. Central Storage is the owner of the land upon which the building was erected pursuant to a contract with All American. The only involvement Mesa had with the project was an oral agreement for Mesa to grade the lot and clean up. There is no evidence that Central Storage had a contract with Mesa to perform any of the supervision, erection, labor, operation of machinery, or any other work relative to the erection of the building. Nor is there any evidence that representatives or employees of Mesa were present on the job site, or that Mesa had any involvement or participation in the erection or construction activities being performed at the job site on May 18, 2000.

According to plaintiffs deposition, he was employed by All American and his boss was Robert Paine, the owner of All American. Plaintiff testified that his work was directed by Mr. Paine. He further testified that the only safety measure employed by All American was to require all workers to wear a hard hat.

| ¡¿Plaintiff did not attach any documents to his Memorandum in Opposition to the Motion for Summary judgment filed by Central Storage and Mesa. When a Motion for Summary Judgment is made and accompanied by supporting documents, the opposing party may not rest on his allegations and denial; rather, he must come forth with affirming evidence to show there is a genuine issue of material fact. Sims, supra. Thus, plaintiff was unable to rebut Mesa’s contention that Mesa was not involved in the erection of the building. Accordingly, we find the trial court correctly granted summary judgment in favor of Mesa.

Otis filed a Motion for Summary Judgment contending it was entitled to summary judgment because at the time of plaintiffs accident, Otis had not begun work installing the elevator at the Central Storage facility. In support of this position, Otis attached the contract between it and Central Storage, the time sheets showing the dates worked on the project and the affidavit of Dennis White, the location manager of the Otis office. Mr. White attested that the ticket sheets reflect that Otis’s installation work did not begin until June 1, 2000. The contract between Otis and Central Storage stated it was the responsibility of Central Storage to “provide guarding and protection of the hoistway during construction.”

In opposition to the motion, plaintiff argued that discovery was not complete in that the documents it received from Otis did not contain the specifications for the elevator shaft or any documents concerning the exact requirements needed for this particular elevator. Plaintiff did attach his Requests for Production of Documents and Otis’s response to these requests. Nothing submitted by plaintiff rebuts Otis’s documents indicating that it had not begun work at the job site at the time of plaintiffs accident. The documents submitted by Otis indicate that Otis had no responsibility for erecting a guard or in any other way protecting other workers from the hoistway. Our de novo review of the Motion for Summary | Judgment indicates that Otis had no responsibility for plaintiffs accident. Accordingly, the trial court correctly granted summary judgment in favor of Otis.

On appeal, plaintiff re-urges his arguments that summary judgment was granted prematurely as discovery is not complete. Our review of the record indicates that suit was filed on May 15, 2001 and discovery requests were attached to the original petition. Service was held on both the petition and discovery requests and there is no indication in the appellate record as to when these documents were served on the defendants. The record indicates that Otis answered plaintiffs requests for production on August 16, 2004 and August 11, 2005. There is no indication in the record as to when Central Storage or Mesa responded to plaintiffs discovery requests. The record is void of any motions to compel or any other documents in which plaintiff attempted to pursue remedies provided by the Code of Civil Procedure to compel defendants to comply with discovery requests. Further, Central Storage and Mesa filed Motions for Summary Judgment on August 26, 2005. These motions were first set for hearing on November 8, 2005 and continued to December 8, 2005. Otis filed its Motion for Summary Judgment on November 9, 2005 and this motion was set for hearing on December 8, 2005. The motions were continued without date on December 8, 2005. A status conference was held on January 4, 2006 at plaintiffs request. In requesting this conference, plaintiff certified that “all deposition, interrogatories, and other discoveries have been completed, or can be completed before trial.” The Motions for Summary Judgment were heard on February 7, 2006. There is nothing in the record to indicate that plaintiff attempted to obtain further discovery from defendants during the time the Motions for Summary Judgment were pending. hnThus, we find plaintiffs argument relative to the motions being premature because discovery was still pending is without merit.

CONCLUSION:

For the foregoing reasons, the judgments of the trial court are affirmed.

AFFIRMED.