text:
    Alex GUILLARD v. COPELAND’S OF NEW ORLEANS, INC.
    No. 07-0867.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Timothy O’Dowd, Attorney at Law, Lake Charles, LA, for the Plaintiff/Appel-lee, Alex Guillard.
    Len R. Brignac, T.A., Lindsay A. Larson, III, King, LeBlanc & Bland, P.L.L.C., New Orleans, LA, for Defendant/Appellant, Copeland’s of New Orleans, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

bThe defendant, Copeland’s of New Orleans, Inc. (Copeland’s), appeals the trial court’s judgment awarding the plaintiff, Alex Guillard, $46,500.00 in damages for Copeland’s breach of a three-year employment contract with him. Mr. Guillard has answered the appeal, asserting that the trial court erred in failing to award him penalties and attorney fees. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

On December 30, 2004, Mr. Guillard entered into a three-year employment contract with Copeland’s, wherein he agreed to provide janitorial services at Copeland’s Lake Charles, Louisiana, restaurant, and Copeland’s agreed to compensate him for the services at the rate of $1,500.00 per month. In May of 2005, Copeland’s closed the Lake Charles restaurant and informed Mr. Guillard that his janitorial services were no longer needed. The quality of Mr. Guillard’s services was not at issue in terminating the contract, and Copeland’s only reason for taking that action was the failure of the restaurant to meet its performance expectations. Copeland’s decided not to reopen the restaurant, and, by the end of June 2005, it had entered a listing agreement for the sale of the restaurant property.

On August 17, 2005, Mr. Guillard filed suit for damages against Copeland’s, asserting that it had breached its three-year contract for employment. On September 24, 2005, Hurricane Rita struck the Lake Charles area and caused approximately $400,000.00 in damages to the building which had previously housed the restaurant.

At trial, the trial court rendered judgment finding that Mr. Guillard was an independent contractor, that Copeland’s had breached the contract, and that Mr. Guillard was not entitled to attorney fees and penalties pursuant to La.R.S. 23:631-

| ,,632. The trial court then awarded Mr. Guillard judgment in the amount of $46,500.00, said award representing the amount that would have been due Mr. Guillard had the contract remained in force and effect for the full three years. Copeland’s timely appealed this judgment, and Mr. Guillard answered the appeal.

OPINION

In its appeal, Copeland’s asserts two assignments of error: (1) the trial court erred in not finding that Hurricane Rita was a fortuitous event making Copeland’s performance impossible and allowing it to dissolve the contract pursuant to La.Civ. Code art. 1876, and (2) the trial court erred by not reducing Mr. Guillard’s recovery, since Mr. Guillard failed to mitigate his damages as required by La.Civ.Code art.2002. Mr. Guillard answered the appeal, asserting in his one assignment of error that the trial court erred in failing to award penalties and attorney fees payable to employees under La.R.S. 23:631-632.

Copeland’s Assignment of Error Number One

Relying on La.Civ.Code art. 1876, Copeland’s contends that the trial court erred in holding that Mr. Guillard was entitled to payment for the full term of the contract. Louisiana Civil Code Article 1876 provides that “[w]hen the entire performance owed by one party has become impossible because of a fortuitous event, the contract is dissolved” and the other party’s recovery is limited to “any performance he has already rendered.” A fortuitous event is defined by La.Civ.Code art. 1875 as “one that, at the time the contract was made, could not have been reasonably foreseen.”

Copeland’s does not dispute that it owes Mr. Guillard for services rendered under the contract from May of 2005, when it informed Mr. Guillard that it would not | ¡¡honor the contract, until September 24, 2005, when Hurricane Rita struck. Its dispute with the trial court judgment is the award which represents the remaining term of the contract, or until December 30, 2008. Copeland’s argues that since Hurricane Rita was a fortuitous event that made Copeland’s performance impossible, the contract was dissolved pursuant to La.Civ. Code art.1976 as of September 24, 2005, limiting what it owed Mr. Guillard to the period ending on that date.

While Hurricane Rita was unquestionably a fortuitous event, Copeland’s argument ignores La.Civ.Code art. 1873, which provides in part that an obligor is liable for his failure to perform “when the fortuitous event occurred after he has been put in default.” (Emphasis added.) In this case, Copeland’s had unquestionably been put in default over one month before Hurricane Rita struck the Lake Charles area, when Mr. Guillard filed his suit. Thus, pursuant to La.Civ.Code art. 1873, Copeland’s is liable for Mr. Guillard’s lost wages until the end of the contract.

We find no merit in this assignment of error.

Copeland’s Assignment of Error Number Two

Copeland’s contends in this assignment of error that the judgment against it should be reduced because Mr. Guillard failed to make a reasonable effort to mitigate his damages. In making this argument, Copeland’s relies on La.Civ.Code art.2002 which provides that “[a]n obligee must make reasonable efforts to mitigate the damage caused by the obligor’s failure to perform,” and that when he does not, “the obligor may demand that the damages be accordingly reduced.”

The issue of mitigation of damages by a laborer/employee has been addressed by the supreme court in Andrepont v. Lake Charles Harbor & Terminal Dist., 602 So.2d 704, 706-07 (La.1992) (emphasis added) with the following conclusion:

| ¿Article 2749 of the Louisiana Civil Code addresses an employer’s liability for terminating an employee with a fixed term contract without cause. • It provides:
If, without any serious grounds of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.
An employer’s breach of a fixed term contract without cause results in the employee’s entitlement to compensation for all wages or salary that he would have received but for the breach.
Of course, there is no duty to mitigate lost salary damages in these circumstances.

While we recognize that the trial court concluded that Mr. Guillard was an independent contractor and not an employee, we find this is a distinction without a difference for purposes of considering his obligation to mitigate damages. As pointed out by the first circuit in Guidry v. Freeman, 555 So.2d 588, 591-92 (La.App. 1 Cir.1989) (emphasis in original),

The Louisiana Civil Code provides for the employer-employee contractual relationship in Book I (Of Persons), Title VI (Of Master and Servánt). La.C.C. arts. 162, 163 and 164 provide as follows:
Art. 162. There is only one class of servants in this State, to wit: Free servants.
Art. 163. Free servants are in general all free persons who let, hire or engage their services to another in this State, to be employed therein at any work, commerce or occupation whatever for the benefit of him who has contracted with them, for a certain price or retribution, or upon certain conditions.
Art. 164. There are three kinds of free servants in this State, to wit:
1.Those who only hire out their services by the day, week, month or year, in consideration of certain wages; the |srules which fix the extent and limits of those contracts are established in the title: Of Letting and Hiring ....

Thus, a servant (employee) for purposes of our Civil Code is any person who lets, hires or engages his services to another to be employed at any work, commerce or occupation whatever for the benefit of him (employer) who has contracted with the servant. La.C.C. art. 164(1) provides that employment contracts of persons who hire out their services for wages are controlled by the Civil Code rules of lease. A lease of labor is a synallagmatic contract based on mutual consent by which one party (the servant or employee) gives to the other (master or employer) his lábor (services) at a fixed price. La.C.C. arts. 2669, 2670, 2673 and 2675. La.C.C. 2745 provides as follows:

Labor may be let out in three ways.
1. Laborers may hire their services to another person.
2. Carriers and watermen hire out their services for the conveyance either of persons or of goods and merchandise.
3. Workmen hire out their labor or industry to make buildings or other works.
Thus, for purposes of the employer-employee contractual relationship, it is irrelevant whether the employee-servant is an independent contractor or a nonindependent contractor. In either situation, the contractual relationship is governed by the same rules.

Given the finding that the same rules govern the employer-employee and principal-independent contractor relationship, we find the decision of the supreme court in Andrepont, 602 So.2d 704, governs our decision is this matter. Thus, we conclude that Mr. Guillard had no duty to mitigate his damages. Therefore, we find no merit in this assignment of error.

Mr. Guillard’s Assignment of Error as Raised by his Answer to the Appeal

In his answer to Copeland’s appeal, Mr. Guillard contends that the trial court erred in finding that he was an independent contractor and, thus, was not entitled to an award of penalties and attorney fees because Copeland’s failed to pay him the | (¡amounts due within three days of his discharge under the contract. We find no merit in this assignment of error.

The trial court’s factual finding that Mr. Guillard was an independent contractor is reviewed under the manifest error/clearly wrong standard. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90. In determining whether there is a principal/independent contractor relationship, as opposed to an employer/employee relationship, a court should determine whether:

(1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) the contract calls 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 to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.

Gordon v. Hurlston, 03-112, p. 4 (La.App. 3 Cir. 9/10/03), 854 So.2d 469, 472.

Applying these factors to the evidence now before us, we find no manifest error in the trial court’s conclusion that Mr. Guil-lard was an independent contractor. The agreement between Mr. Guillard and Copeland’s is based on a proposal for specific services prepared by Mr. Guillard. It requires Mr. Guillard to provide cleaning services to the Lake Charles restaurant, but provides only that a specific result be obtained without reference to specific hours or work schedules. Thus, Copeland’s did not have the right to control the method and means by which Mr. Guillard performed his cleaning services. The contract price provides a set fee for services rendered |7without regard to the time involved, and the contract itself is for a fixed three-year period. Although Copeland’s did make arrangements for Mr. Guillard to work during certain hours, that arrangement accommodated the restaurant’s schedule and did not address how or when Mr. Guillard performed his services.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment in all respects. We assess all costs of this appeal to the defendant, Copeland’s of New Orleans, Inc.

AFFIRMED.

      . Louisiana Revised Statute 23:631 requires an employer to pay any amounts due to a discharged employee or laborer within three days of his discharge. Louisiana Revised Statute 23:632 provides for an award of penalties and attorney fees for an employer’s failure to comply with the requirements of La. R.S. 23:631.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Valerie B. BANDY v. Patrick T. BANDY.
    No. 07-849.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Randal Bryan Tannehill, Pineville, LA, for Plaintiff/Appellant-Valerie B. Bandy.
    Patrick T. Bandy, Terrell, TX, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

| T This case involves a visitation dispute between the plaintiff-appellant, Valerie B. Bandy (Valerie), and the defendant-appel-lee, Patrick T. Bandy (Patrick). Valerie, a Louisiana resident, is the sole custodial parent of the parties’ minor son, Mark Bandy, who will be thirteen years old in December 2007. Patrick, a Texas resident, currently has seven weeks of unsupervised visitation in the summer, with standard visitation on alternating weekends and holidays. Based upon events occurring in Texas in the summer of 2006, Valerie filed a Rule to Terminate/Modify Custody and Visitation in September 2006.

While Valerie refers to “custody” in her rule, and the trial court’s minute entry in October 2000 refers to “custody” with Patrick in Texas in June and July, the judgments in the record are clear; the sole custody awarded to Valerie in 1996 has never been disturbed, and the issues herein are about a change in Patrick’s visitation, not a change in custody. Following a bench trial on the rule on March 5, 2007, Valerie’s request for termination or modification of visitation was denied. She appeals. For the following reasons, we reverse the judgment of the trial court and render an order modifying Patrick’s visitation to supervised visitation.

I.

ISSUES

We must decide:

(1) whether the trial court erred in admitting into evidence two police reports and two drug test results offered by the defendant-appellee, Patrick Bandy; and
(2) whether the trial court erred in failing to terminate or modify the father’s visitation in light of events occurring in Texas in 2006, as testified to by the minor child, and as confirmed by his mother.

Jail.

FACTS AND PROCEDURAL HISTORY

The parties were married in December of 1993 and were living in Dallas, Texas with their son, Mark, born in December 1994. In April of 1996, Valerie separated from Patrick and moved with her sixteen-month-old son back to her home in Rap-ides Parish, Louisiana. In August 1996, alleging cruel treatment by Patrick, Valerie filed for divorce in Rapides Parish. Following a hearing in December 1996, Valerie was granted sole custody of Mark, and Patrick was granted supervised visitation only in Louisiana. Patrick was ordered to pay $300.00 per month in child support. Due to Patrick’s six-month arrearage in child support payments, Valerie obtained an order for Support Enforcement Services through the Louisiana Department of Social Services in May of 2000. Three months later, in August of 2000, Patrick filed a rule seeking standard visitation, stating in the rule that he had remarried, was holding a responsible job in Texas, and that he would submit to a psychological evaluation if the court required it.

Valerie filed an answer to the rule, stating that Patrick had visitation privileges that he was not exercising. She stated that Patrick had seen Mark less than sixteen times over the previous four-year period and had never kept Mark for over five hours at a time. Valerie further stated that Patrick filed his rule for more visitation in retaliation against her for turning the support arrearage over to Louisiana Support Enforcement Services. Valerie averred that the same conditions existed in October 2000 that existed in April 1996 when she obtained sole custody of Mark, and she specified those conditions in detail as reasons for not expanding visitation in favor of Patrick. She described Patrick as violent and mentally and emotionally incompetent to care for Mark. Valerie stated that she had left Texas with Mark in laApril of 1996 after Patrick punched the sixteen-month-old child in the head with his fist as hard as possible after the teething baby bit his father on the arm.

Patrick’s rule for visitation was tried on October 23, 2000, apparently with some favorable testimony on Patrick’s behalf, because his request for standard visitation was granted. It included standard, unsupervised visitation at Patrick’s residence in Texas, near Dallas, on weekends and holidays, with visitation in Texas for the months of June and July of each year, subject to a week of summer visitation with Valerie during that time. That judgment was signed in December 2000.

In the summer of 2006, several events occurred during Mark’s summer visitation with Patrick that frightened Mark. There were fights between Mark’s step-mother, Demetra, and Patrick over Patrick’s drug use, culminating on July 19, 2006 with Patrick’s threats against Mark, Mark’s frantic call to his mother in Louisiana, his 911 call to the police in Texas, and Valerie’s drive to Texas to retrieve Mark at 1:30 in the morning. Patrick did not attempt visitation or try to contact Mark until September 2006. Valerie indicated that Mark was not at home and asked Patrick for an explanation of the events in July. Patrick responded that it did not concern her. Valerie then filed her Rule to Terminate/Modify Custody and Visitation.

The matter was tried on March 5, 2007, with Mark, age twelve, testifying in court that he had seen the drugs in Patrick’s truck, that his father was acting strange, that he was afraid of his father, and that he did not want to go back to Texas for visitation with his father.

At trial, Patrick, representing himself, introduced a police report indicating that no drugs were found at Patrick’s residence in Texas on the night of the July 19, 2006 incident. He introduced two additional documents indicating negative drug test results (hair and urine) on a court-ordered drug test on November 20, 2006. ^Patrick's fourth exhibit was an incident report dated November 22, 2006 wherein Patrick filed a complaint against Valerie in Alexandria for not having Mark available for visitation. These were the only documents offered as exhibits. Counsel for Valerie objected to the introduction of these reports based upon a lack of authentication and the lack of foundation for the reports.

The trial judge admitted the documents but lectured Patrick at length, indicating that he believed that there was indeed drug use by Patrick, and further indicating that the negative test results only indicated that he was not using drugs for a certain period of time. Ultimately, the trial judge denied Valerie’s request for modification of custody and visitation, stating that he had insufficient evidence of drug use and possession.

III.

LAW AND DISCUSSION Standard of Review

In child custody matters, the determinations of the trial judge are entitled to great weight, and his discretion will not be disturbed on appellate review in the absence of a clear showing of abuse. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756. However, where there has been an error of law, a de novo review is required. Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731. In Evans, the Supreme Court discussed the appellate review standard where the trial court has committed legal error. The Supreme Court stated:

[Wjhere one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are ^prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.

Evans, 708 So.2d at 735 (citations omitted).

Burden of Proof

In the present case, Valerie was granted sole custody of Mark following a hearing on the matter in December 1996, and Patrick was granted supervised visitation in Louisiana only. In October 2000, Patrick requested and obtained standard, unsupervised visitation in Texas, after a hearing. The trial court later referenced the October 2000 hearing erroneously in his minute entry as a “custody” hearing. However, the issue was visitation, as Patrick did not file for custody.

Due to the events that occurred in Texas in the summer of 2006, Valerie sought to terminate or modify the visitation with Patrick in Texas, although she used the terminology “Custody & Visitation” in her rule. In denying Valerie’s request, the trial court erroneously stated that it would not disturb the original “custody” order. However, his reference was to his October 2000 judgment on visitation. The sole custody granted to Valerie in 1996 has never been disturbed. Accordingly, the issue herein is Valerie’s rule to terminate or modify Patrick’s “visitation” due to events that occurred in the summer of 2006. Hence, the controlling article is La.Civ. Code art. 136, which states as follows:

Art. 136. Award of visitation rights
A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

IfiRevision comment (b) to La.Civ.Code art. 136 states as follows:

(b) The first paragraph of this Article restates the test for parental visitation established in the leading case of Maxwell v. LeBlanc, 434 So.2d 375 (La.1983). That case set forth a comprehensive body of rules governing visitation, all of which were jurisprudential in nature, because Louisiana did not have statutory provisions concerning child visitation prior to 1988. (Acts 1988, No. 817 enacted prior C.C. Art. 146.1, later redes-ignated as C.C. Art. 132). Nevertheless, this Article is not intended to affect the Maxwell case, except for the court’s declaration that visitation is a “species of custody,” which is no longer strictly true, since visitation has an independent basis under this Article.

In White v. Fetzer, 97-1266 (La.App. 3 Cir. 3/6/98), 707 So.2d 1377, writ denied, 98-931 (La.5/15/98), 719 So.2d 466, a panel of this court discussed Article 136, revision comment (b), and the burden of proof of the party seeking to modify visitation as follows:

In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the supreme court stated that in a case involving modification of a considered decree of permanent custody, the burden of proof for the petitioning party is to show that the continuation of the present custody is so deleterious to the child so as to justify the modification, or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id. at 1200....
However, visitation is not strictly a “species of custody” and, instead, has an independent basis in the Civil Code. La. Civ.Code art. 136, Revision Comments 1993(b). A change in visitation rights is not as substantial as a change in actual physical custody. Mosely v. Mosely, 499 So.2d 106 (La.App. 1 Cir.1986), writ denied, 505 So.2d 1138 (La.1987). In such cases, a showing that the change in visitation is in the best interest of the child is sufficient. Bennett v. Bennett, 95-152 (La.App. 3 Cir. 5/31/95); 657 So.2d 413.

Id. at 1380.

We also note that the Louisiana Supreme Court in Maxwell stated that the right of visitation for a non-custodial parent is a natural right with respect to his |7children. However, the court further stated that the right of visitation is not without its limitations, and that the “rights of any parent are always subservient to the best interests of the child.” Maxwell, 434 So.2d at 377.

Under La.Civ.Code art. 136, the parent seeking to restrict or deny access or visitation of the other parent to the child has the burden of proving that visitation would not be in best interest of the child. Percle v. Noll, 93-1272 (La.App. 1 Cir. 3/11/94), 634 So.2d 498; Maxwell, 434 So.2d 375. Accordingly, since Valerie filed the rule regarding a change in visitation, she has the burden of proving that it is in the best interest of Mark that Patrick’s visitation be terminated or modified.

The events that gave rise to Valerie’s rule to modify the existing arrangement occurred in Texas in the summer of 2006. They include Patrick’s taking his eleven-year-old son with him and driving four hours to procure drugs, then an incident wherein Patrick and Mark’s step-mother, Demetra, fought over Patrick’s drug use, resulting in her banishment of Patrick from the house and Mark’s having to stay in a motel with his father. The culminating event occurred on July 19, 2006, when another fight between Demetra and Patrick over Patrick’s drug use resulted in a family fight that scared Mark and caused Valerie to drive six hours to pick him up from a dark house at 1:30 in the morning.

Twelve-year-old Mark testified in court at the trial of this matter. He stated that on the evening of July 19, 2006, he went outside to help his step-mother, Demetra, bring the groceries inside and that she told him then that Patrick was smoking marijuana. She showed Mark the leather pouch with the drugs inside. Mark specifically testified that he saw the drugs in the leather pouch in Patrick’s truck. Mark further testified that Demetra told him to go inside and call his mother in Louisiana. However, Patrick overheard this exchange, and a loud argument erupted ^between Demetra and Patrick. Mark tried to call his mother, but Patrick disconnected the phone. Demetra gave Mark her cell phone. Mark locked himself in the bathroom with the cell phone, but Patrick “jimmied” the door and took the phone away from him. Mark stated that his stepmother then told him to take his one-year-old half sister out of the house due to the ruckus.

Mark testified that he went to a neighbor’s house, borrowed a phone, and called his mother, Valerie. Valerie instructed him to call 911 and to stay where he was until she could get there. Patrick then came to the neighbor’s house and threatened to beat Mark if he did not come back in the house with Patrick. Mark testified that he was afraid for his safety and ran down the street. Patrick chased Mark with the car and eventually got him back into the house. Mark testified that Patrick then told him that Patrick’s mother had been murdered, that his father died of AIDS, and that smoking marijuana made him feel better. Patrick further told Mark that he had gotten the drugs a few weeks before when he and Mark had gone to Houston to meet Patrick’s brother at a sporting goods store. Patrick had told Mark at the time that the trip was for the purpose of signing papers for his brother but now admitted to Mark that that is where and when he got the drugs. Mark further testified that during the ruckus on July 19, 2006, Demetra flushed the drugs down the toilet to keep the baby from finding them before the police arrived in response to Mark’s 911 call.

The July 19, 2006 police report, introduced by Patrick, indicates that an eleven-year-old boy called and said that his dad had been smoking pot since July 4th, that the boy was concerned for the infant in the home, and that he wanted his father arrested. The police officer reported that she met with the boy and then the father, who denied doing drugs. She also reported that she went into the residence and found |flno signs of drugs or drug activity. It was this police report, as well as the negative drug test results and the incident report on visitation, that Patrick offered into evidence during the trial; and it was these reports that the trial judge referenced at the end of trial when he ruled from the bench that he had insufficient evidence of drug use or possession.

Valerie contends that the trial court erred in admitting the drug test results and police reports, which lacked authentication and foundation, and that the trial court erred in not considering the testimony of the minor child, Mark. We agree. The record contains no analysis of the facts gathered and no written reasons for the judgment appealed from. It appears from the record that the trial judge disregarded the eye-witness testimony of Mark, who saw the drugs first hand and observed his father’s strange demeanor, and that the trial court relied solely on the police report and the drug test results, which did not confirm drug activity, to conclude that he had insufficient evidence of drug use. Importantly, the trial court’s admission of, and reliance upon, the drug test results and the police reports was legal error.

More specifically, without authentication and a proper foundation, the drug test results should have been excluded as hearsay under Article 803(6) of the Code of Evidence, and the police reports should have been excluded under Article 803(b)(1). Article 803 provides that certain records are not excluded from evidence as hearsay because they are exceptions to the hearsay rule. The drug test results fall under the business record exception if they are properly authenticated by a qualified foundation witness, which Patrick’s documents were not. Article 803 states that business records are excepted from hearsay under the following circumstances:

(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, | inconditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph. (Emphasis added).

In the present case, Patrick represented himself and introduced the drug test results into evidence without calling a single witness to testify as to their authenticity and to the practices under which the information was gathered. Patrick indicated that they were faxed to the court by the laboratories themselves, but there was no testimony regarding the collection process or the chain of command, and no testimony identifying the defendant, Patrick, as the contributor of the hair and urine samples. The Louisiana Supreme Court in State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, Juniors v. Louisiana, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006), affirmed a trial court’s refusal to admit drug test results, stating as follows:

The witness laying the foundation for the admissibility of business records need not have been the preparer of the records; however, the witness must be familiar with and able to testify from personal knowledge about the bookkeeping and accounting procedures of the entity whose business records are sought to be introduced. Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122, 129 (La.App. 2 Cir.1990). “Under Art[icle] 803(6), it is essential that a custodian or other qualified witness tes-timonially explain the record-keeping procedures of the Inbusiness and thus lay the foundation for the admissibility of the records.” Id. If the foundation witness cannot vouch that the requirements of the Code of Evidence have been met, the evidence must be excluded. Id. See also, State v. Borne, 96-1130 (La.App. 4 Cir. 3/19/97), 691 So.2d 1281, writ denied, 97-1021 (La.10/3/97), 701 So.2d 197 [cert. denied, Borne v. Louisiana, 523 U.S. 1009, 118 S.Ct. 1196, 140 L.Ed.2d 325 (1998) ].
In this case, Wilson, the secretary of Fleet Boats, Inc. who testified that she handled the accounting and most of the paperwork for the company, provided the necessary predicate for introduction of certain business records of the company. She identified Williams’ W-4 form, completed job application, and pink slip as Fleet Boats records that were generated and kept as part of the personnel file. However, when the drug test form from the independent laboratory was presented to the witness for identification, she acknowledged that report was generated by the independent laboratory, and not by Fleet Boats. Further, she was unable to explain how the notation “Positive marijuana” came to be handwritten on the bottom of the form or by whom. Under such circumstances, it is clear the necessary predicate was not established for admissibility of the Corning Laboratories form under the business records exception to the hearsay rule.
... Wilson had no personal knowledge as to the procedures and processes of the laboratory.... She was unable to verify that the [handwritten notation] was made by persons who had personal knowledge of the test or of the test results. In short, she was in no position to testify as to the reliability or trustworthiness of the report. As a result, the report was properly excluded by the trial court. See and compare, State v. Borne, [691 So.2d 1281] (Results of defendant’s pre-employment drug test not admissible under business records exception to hearsay rules absent testimony as to who had custody of the result, who conducted the drug testing, and whether the results were kept as records in the regular course of business); Ruddock v. Jefferson Parish Fire Civil Service Bd., 96-831 (La.App. 5 Cir. 1/28/97), 688 So.2d 112 (Results of drug test properly admitted under business records exception to hearsay rule where associate director of biomedical laboratory performing the test testified he was responsible for the day-to-day operations of the laboratory, that he was familiar with the procedures and processes conducted at the laboratory upon receipt of a specimen for testing, and provided a detailed explanation of the test results.).

| juniors, 915 So.2d at 327-28.

In the present case, no testimony was given regarding the procedures used by the laboratories. Patrick simply denied current drug use and handed in his exhibits. The report from Omega Laboratories in Ohio indicates that a “Hair 5 Drug Panel” was requested. This exhibit consisted of one page. It was printed from an internet web site on November 22, 2006, two days after the sample was collected, and it indicated at the top right corner that this was “Page 12 of 14.” The report notations stated as follows, “0.25-0.75 inches in length (approximately 0-15, 45 day time frame).” We have no way of knowing what the parenthetical phrase means, as no explanation was given regarding the contents of the report. The report further indicates that tests were performed for the five major drug classes. The results block contains the word “negative” and states that, “A negative result indicates that none of the drugs listed above were detected at a concentration greater than their listed cutoff levels.” Likewise, this process and the numbers assigned as “cutoff’ levels were not discussed or explained in any way. The only information about the donor is the name “Patrick Bandy” and a social security number. The specimen donor is not described in the document, and there is no indication as to what kind of identification was required to confirm the identity of the donor.

We are assuming that the second document from One Source Toxicology in Pasadena, Texas is the result of a urine test, although nothing on the form indicates what was tested, as the form is entitled simply “Result Form.” This report was also printed from the internet on November 22, 2006, two days after the sample was collected and one day after it was received. Again, no testimony was presented to authenticate or explain the report, the process, the chain of custody, or the identity of the donor. Without a proper foundation witness to authenticate these drug test 113reports, they are inadmissible, and the trial court committed legal error in allowing them into evidence.

The police reports are inadmissible because they are public records specifically excluded from the exceptions to the hearsay rule at La.Code Evid. art. 803(8)(b), which provides as follows:

(b) Except as specifically provided otherwise by legislation, the following are excluded from this exception to the hearsay rule:
(i) Investigative reports by police and other law enforcement personnel.
(iv) Factual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based or an investigation into a similar occurrence or occurrences.

Because we have found legal error on the part of the trial court in allowing the inadmissible documents into evidence, the “abuse of discretion” standard does not apply. Rather, we must conduct a de novo review of the entire record on appeal in order to determine the best interest of the child, Mark. Evans, 708 So.2d 731.

Mark, who was twelve years old when he testified and who will be thirteen in December 2007, stated that he felt unsafe and was afraid of his dad. He specifically stated that he did not want to return there, even if his father cleaned up. When pressed, Mark stated that perhaps if there were a way to prove that his dad had cleaned up he would consider going back, but he would not take his dad’s word for it. He stated that his father was a drug addict, that addicts always return to drugs, and that he did not want to be around drugs. He further stated that his dad talked irreverently about his mother, in “bad” ways that he just disregarded. On one luoccasion, Patrick took Mark out to eat and then read a court transcript to him in the restaurant, attempting to turn him against the mother. Mark stated that his mother did not talk about Patrick. Patrick testified at trial that he thought exposing Mark to his trial testimony was appropriate under the circumstances and that he would do it again.

Mark further testified that his dad had only tried to contact him once between the incident on July 19, 2006, and the trial on March 5, 2007, and that there had been no cards or letters, which was confirmed by his mother in her testimony. Patrick testified that he had tried to contact Mark five times and that there had been cards and presents sent (Mark’s birthday is in December, near Christmas), but he offered no proof to that effect.

Patrick further stated that Demetra had not found marijuana but had found “spices” that he was gathering for a spice rack that he was building her for Christmas. However, he stated that the spices were in bags, not a leather pouch.

In Rutledge v. Rutledge, 41,792 (La.App. 2 Cir. 12/13/06), 945 So.2d 307, the court considered a thirteen-year-old to be of an age to have her reasonable preferences considered. In Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, unit denied, 95-1488 (La.9/22/95), 660 So.2d 478, we reversed the judgment of the trial court which gave little consideration to the preferences of two boys, ages eight and ten, where the record indicated that they organized their thoughts and expressed themselves clearly. One expert in that case stated that the preference of those children should be considered very heavily. The other expert stated that the threshold age should be fifteen but could be pushed down to thirteen if the child was mature and of a higher intelligence. We believe that competency and maturity, not age, are the true determining factors. In the present case, the trial court told Mark’s |1Rparents that Mark was a very smart child. That is clearly supported by his testimony, his vocabulary, and his word usage.

Mark’s mother, Valerie, also testified at the trial of this matter. She stated that she had worked for two different school boards in Louisiana, one for five years, and the other for six years, that her last position was that of grant writer and manager for Rapides Parish Schools, and that she had just gotten a new position as a School District Instructor for the Renaissance Home for Youth. The record indicates a very loving and affectionate relationship between Mark and Valerie. Valerie testified that it was difficult but she did not disparage Patrick in front of Mark. She testified that on the night of the incident in July 2006, Mark called her when she was at her mother’s house and said, “Mom, please help me,” and the phone went dead. He eventually called her back and told her the story that he testified to in court. Valerie called the police in Terrell, Texas and started driving there with her mother in a lightning storm. When she arrived around 1:30 a.m., Mark came out of the dark house with his suitcases, and there appeared to be no one else there.

Valerie also testified that Mark had told her about the earlier incident when Patrick and Demetra fought about Patrick’s drug use, and Demetra threw Patrick out of the house. Patrick took the baby, and Deme-tra pleaded with him to bring the one-year-old back. Patrick then took Mark to a hotel where they stayed for a period of time. The record is unclear as to the length of the hotel stay. Regarding this event, Patrick testified that this argument had taken place closer to a month before, and that he had decided to go to a motel to get out of the house. The testimony from the trial of this matter reveals that Mark is a child who wants a normal life free of drugs and dysfunctional behavior, the kind of adolescent that many parents |1fipray for, and that it is the father who is dragging his own son into an unstable, emotional quagmire.

Given the totality of the testimony and the record before us, we cannot help but believe that Patrick has reverted to behavior that prevents him from providing a stable environment for his son Mark and that negatively impacts the time he should be allowed to spend with Mark, even for visitation. Accordingly, we reverse the judgment of the trial court and set visitation as follows:

Patrick Bandy shall be entitled to supervised visitation privileges on alternate weekends, commencing on the weekend following the issuance of this court’s opinion, from 9:00 a.m. Saturday and Sunday to 7:00 p.m. Saturday and Sunday in the State of Louisiana.
In even-numbered years, Patrick Bandy shall have supervised visitation from 9:00 a.m. to 7:00 p.m. on the following holidays: Easter, Thanksgiving, and Christmas in the State of Louisiana.
Patrick Bandy shall have supervised visitation on Father’s Day from 9:00 a.m. to 7:00 p.m. in the' State of Louisiana.
The visitation privileges shall be exercised under the supervision of an adult who shall be mutually selected by Valerie and Patrick Bandy. Patrick Bandy shall notify Valerie Bandy at least seventy-two hours preceding the exercise of his visitation privileges if he cannot exercise visitation privileges at the scheduled time.

IV.

CONCLUSION

Based upon the foregoing, the judgment denying Valerie Bandy’s request for modification of visitation is reversed due to the trial court’s legal error in receiving into evidence and relying upon inadmissible documents. After a de novo review of the record in its entirety, we find that it is in the best interest of the minor |17child, Mark Bandy, to limit the visitation privileges of Patrick Bandy. Accordingly, we hereby enter an order of visitation for Patrick Bandy as follows:

Patrick Bandy shall be entitled to supervised visitation privileges on alternate weekends, commencing on the weekend following the issuance of this court’s opinion, from 9:00 a.m. Saturday and Sunday to 7:00 p.m. Saturday and Sunday in the State of Louisiana.
In even-numbered years, Patrick Bandy shall have supervised visitation from 9:00 a.m. to 7:00 p.m. on the following holidays: Easter, Thanksgiving, and Christmas in the State of Louisiana.
Patrick Bandy shall have supervised visitation on Father’s Day from 9:00 a.m. to 7:00 p.m. in the State of Louisiana.
The visitation privileges shall be exercised under the supervision of an adult who shall be mutually selected by Valerie and Patrick Bandy. Patrick Bandy shall notify Valerie Bandy at least seventy-two hours preceding the exercise of his visitation privileges if he cannot exercise visitation privileges at the scheduled time.

REVERSED AND RENDERED.

GENOVESE, J., concurs in the result.


author: SULLIVAN, Judge.

text:
    David ROUGEOU v. Muriel ROUGEOU.
    No. 07-817.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      David K. Rougeou, In Proper Person, Longville, LA, for Plaintiff/Appellant.
    Muriel Rougeou, In Proper Person, Longville, LA, for Defendant/Appellee.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

11 David Rougeou appeals the trial court’s denial of his request to confirm the default judgment entered in this matter. We affirm.

Facts

David Rougeou filed suit against Muriel Rougeou, seeking damages for unjust enrichment. He alleged that Ms. Rougeou allowed him to move his home onto her family’s property with the intent that he live there, but a dispute arose between them, and Ms. Rougeou had him evicted from the property. He seeks to recover the value of the home on the basis that the home was not a gift to her and her retention of the home resulted in an unjustifiable benefit to her.

Ms. Rougeou did not file an answer after being served with the petition, and a preliminary default was entered against her. Mr. Rougeou sought to confirm the preliminary default before the trial court. The trial court refused to confirm the default, and Mr. Rougeou filed this appeal.

Discussion

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. Code Civ.P. art. 1702(A). A plaintiff seeking to confirm a default must present “competent evidence that convinces the court that it is probable that he would prevail at trial on the merits.” Power Mktg. Direct, Inc. v. Foster, 05-2023, p. 11 (La.9/6/06), 938 So.2d 662, 670.

During the confirmation hearing, Mr. Rougeou testified that Ms. Rougeou “seized my family home ... without any compensation” and introduced an appraisal of his home, which stated the value of the home was $45,000.00.

| «.The trial court took judicial notice of a prior proceeding between Mr. Rougeou and Ms. Rougeou which it had adjudicated. It observed that in the prior proceeding, Mr. Rougeou was ordered to remove his home from Ms. Rougeou’s property. He failed to do so, and the trial court ordered that the home was abandoned and that Mr. Rougeou had no right to claim it.

During the hearing to confirm the default judgment, Mr. Rougeou admitted to the trial court that he is “seeking to recover property that [he] abandoned because [he] failed to remove it pursuant to a Court Order.” The trial court refused to grant judgment as requested, explaining: “It is not Ms. Rougeou’s fault that you did not comply with your Court Orders. Consequently, you are not entitled to claim reimbursement from her for unjust enrichment.” There is no evidence that Mr. Rougeou appealed the prior judgment.

Unjust enrichment is based in equity and provides that no one should be enriched at the expense of another. Minyard v. Curtis Prods., Inc., 251 La. 624, 205 So.2d 422 (1967). Louisiana Civil Code Article 2298 provides “[a] person who has been enriched without cause at the expense of another person is bound to compensate that person.” If the enrichment “results from a valid juridical act or the law” it is not “without cause,” and if there is another remedy for the impoverishment, the claim of unjust enrichment is not available to the plaintiff. La.Civ.Code art. 2298. A final judgment is the law between the parties to that litigation. Leger v. Weinstein, 03-1497, 03-1498, 03-1616 (La.App. 3 Cir. 10/27/04), 885 So.2d 701, writs denied, 04-2899 (La.2/4/05), 893 So.2d 882; 04-2903 (La.2/4/05), 893 So.2d 873.

Mr. Rougeou acknowledged to the trial court that he was ordered to remove his home from Ms. Rougeou’s property and that, pursuant to the trial court’s order, he bwas deemed to have abandoned the property because he failed to do so. Thus, the enrichment is not without cause. Additionally, another remedy, removal of the home from Ms. Rougeou’s property, was available to Mr. Rougeou. The trial court did not err in refusing to grant judgment in his favor.

Disposition

The judgment of the trial court is affirmed. All costs of this appeal are assessed to David Rougeou.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Amy L. FOX v. CITY OF ALEXANDRIA.
    No. 07-810.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Bobby L. Culpepper, Culpepper & Carroll, PLLC, Jonesboro, LA, for Plaintiff/Appellant Amy L. Fox.
    Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellee City of Alexandria.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.
   GREMILLION, Judge.

liThe plaintiff, Amy L. Fox, appeals the trial court’s judgment granting a peremptory exception of no cause of action in favor of the defendant, the City of Alexandria. For the following reasons, we affirm the exception as it pertains to Fox’s Health Insurance Portability and Accountability claim. However, we remand the matter as we find that her petition has sufficiently stated a cause of action for invasion of privacy pursuant to Article 1, § 5 of the Louisiana Constitution.

FACTS

Fox, a communications officer for Alexandria, filed the instant suit after her request for refinancing was delayed or denied based on information supplied by Alexandria to the mortgage company, Louisiana Mortgage Lenders. As part of its mortgage application, Louisiana Mortgage required information pertaining to the vacation and compensation time owed to Fox through her employment. Fox authorized Alexandria to release this information. In doing so, Mary Moore, an accountant with Alexandria, told Louisiana Mortgage that Fox was on sick leave, she had been on extended sick leave, she had undergone eye surgery, and that she did not think that Fox intended to return to work. Thereafter, Louisiana Mortgage refused or delayed Fox’s mortgage application.

In her petition, Fox claimed that Moore violated the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. 1301, et seq., by disclosing any information other than that pertaining to her compensation and vacation time. She further sought damages for mental anguish and for all monetary damages she suffered as a result of her failure or delay in obtaining refinancing. Alexandria |2answered and then filed a peremptory exception of no cause of action in which it argued that Fox had no cause of action against it under either the Social Security Act or HIPAA. Following a hearing, the trial court granted Alexandria’s exception. This appeal by Fox followed.

ISSUES

Fox raises three assignments of error on appeal. She argues that the trial court erred in finding that she did not have a cause of action pursuant to HIPAA, and that it erred by dismissing her suit in full rather than allowing her to amend her petition.

EXCEPTION OF NO CAUSE OF ACTION

The standard of review pertaining to an exception of no cause of action was laid out by the court in Johnson v. State of Louisiana, 06-2024, p. 3 (La.App. 1 Cir. 6/8/07), 965 So.2d 866:

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Ramey v. DeCaire, 2003-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118. In the context of the peremptory exception, a cause of action is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Id. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931. Consequently, a court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial on the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id.
This court reviews a judgment of the trial court pertaining to an exception of no cause of action de novo. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Ramey, 2003-1299, at pp. 7-8, 869 So.2d at 119.

| oEven accepting that the facts pleaded in Fox’s petition are true, we find that she has failed to state a cause of action pursuant to HIPAA. HIPAA was described in State v. Downs, 04-2402, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 726, 728:

HIPAA is a massive federal statute that consists of extensive regulations. These regulations identify and limit select entities’ capacity to disclose patients’ medical records. The implementation of these regulations applies to the following: (1) a health plan; (2) a health care clearinghouse; and (3) a health care provider who transmits any health information in electronic form in connection with a transaction covered by these regulations. See 45 C.F.R. §§ 160.102 and 164.104. These regulations provide limited circumstances when disclosures are permitted for judicial and administrative proceedings. See 45 C.F.R. § 164.512.

As HIPAA only applies to health plans, health care clearing houses, or certain health care providers who transmit health information via electronic means, its regulations do not apply to Alexandria. Thus, we find that Fox’s petition fails to state a cause of action against Alexandria pursuant to that act.

INVASION OF PRIVACY

On appeal, Fox further argues that the trial court erred by not allowing her the opportunity to amend her petition so as to remove Alexandria’s grounds for its objection of no cause of action. For the first time, she now claims that her petition contains facts sufficient to state a cause of action for invasion of privacy under either the Louisiana Constitution or La.Civ.Code art. 2315.

At the conclusion of the hearing on the exception, the trial court stated that it was dismissing any claim Fox had pursuant to HIPAA. However, it did not indicate a delay in which Fox could amend her petition to state any other claim she might have.

| ¿After reviewing the petition, we find that Fox is entitled to continue with her suit. Although she has failed to state a cause of action pursuant to HIPAA, her petition reveals that she has stated facts sufficient to plead a cause of action for invasion of privacy pursuant to Louisiana Constitution, Article 1, § 5. See Taylor v. Hixson Autoplex of Alexandria, Inc., 00-1096 (La.App. 3 Cir. 3/28/01), 781 So.2d 1282, writ not considered, 01-1539 (La.9/14/01), 796 So.2d 670. Accepting the facts pleaded as true and in a light most favorable to Fox, her petition states that Moore, through her employment with Alexandria, released private information pertaining to Fox which caused her to suffer general and monetary damages. Article 1, § 5 provides, “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” Accordingly, we remand this matter to the trial court for further proceedings on Fox’s claim that she suffered an invasion of privacy as a result of Alexandria’s release of information concerning her potential work status.

CONCLUSION

For the foregoing reasons, the judgment of the trial court dismissing Fox’s claims pursuant to HIPAA is affirmed. However, the matter is remanded to the trial court for further proceedings based on a finding that she has stated a cause of action for invasion of privacy pursuant to Louisiana Constitution Article 1 § 5. Costs of this matter are assessed to plaintiff-appellant, Amy L. Fox.

AFFIRMED AND REMANDED.


author: PICKETT, Judge.

text:
    Wanda G. BURNEY v. EUNICE POLICE DEPARTMENT.
    No. 07-789.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Christopher R. Philipp, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Eunice Police Department.
    Harry K. Burdette, The Glenn Armentor Law Corp., Lafayette, LA, for Plaintiff/Appellee, Wanda G. Burney.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

|,The defendant, the Eunice Police Department, appeals a judgment of the Office of Workers’ Compensation (OWC) in favor of the claimant, Wanda G. Bruney, granting the claimant’s motion for summary judgment and ordering that, for the purpose of determining her weekly compensation benefits, her state supplement pay be included in her salary, beginning the date she no longer received the supplement. After, a de novo review, we affirm the ruling of the OWC.

FACTS

The facts in this case are not in dispute. The claimant injured her right knee on October 13, 2004, in the course and scope of her employment as a police office for the city of Eunice. As a police officer, the claimant received a base salary from the Eunice Police Department and State Supplemental Pay (SSP) pursuant to La.R.S. 33:2218.4. Following her accident, the claimant was disabled and received weekly workers’ compensation benefits based upon her base salary from the Eunice Police Department, excluding her SSP from the calculation of her weekly benefit as per La. R.S. 23:1021(12)(E). She also continued to receive her SSP. On November 30, 2005, the state terminated her SSP. Thereafter, she filed the motion for summary judgment which forms the basis for this appeal. In that motion she sought to have the amount of her SSP included in the calculation of her weekly benefit beginning the date the SSP terminated.

Louisiana Revised Statutes 23:1021(12)(E)(emphasis ours) provides the following: “For municipal police officers, additional compensation paid by the state pursuant to R.S. 33:2218.4 shall not be included in the calculation and computation of total salary or average weekly wage to the extent such officer continues to receive 19such additional compensation during the period of his disability.” The claimant argues that once the state discontinued her SSP, that amount should have then been added to her base salary and her weekly benefit recalculated.

The Eunice Police Department contends that the claimant’s argument is without merit, relying on La.R.S. 33:2218.4(D) (emphasis ours) which states:

The additional compensation paid by the state to municipal police officers as herein provided shall be included in the calculation and computation of the total wages paid to the municipal police officer in the determination of employer contributions to any retirement system or pension fund of which the police officer may be a member as well as in the determination of retirement eligibility and benefits which may accrue to the police officer under any retirement system or pension fund, as well as in the determination of any other employee benefits, sick leave, or disability pay to which the police officer might be entitled with the exception of workers’ compensation benefits pursuant to R.S. 23:1021 et seq.

The Workers’ Compensation Judge (WCJ) found in favor of the claimant. We agree with the WCJ.

LAW AND DISCUSSION

The proper standard of review in cases such as the one before us is well settled; in Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-582, pp. 9-10 (La.11/29/06), 948 So.2d 1037, 1045 (citations omitted in original)(footnote omitted) our supreme court reviewed that standard of review:

When we are called upon to review legislative provisions, this Court follows certain guidelines, as we did in Louisiana Municipal Association v. State, 04-0227 (La.1/19/05); 893 So.2d 809. In Louisiana Municipal Association, this Court recognized:
Questions of law, such as the proper interpretation of a statute, are reviewed by this court under the de novo standard of review. After our review, we “render judgment on the record, without deference to the legal conclusions of the tribunals below. This court is the ultimate arbiter of the meaning of the laws of this state.” | ^‘Legislation is the solemn expression of legislative will, and therefore, the interpretation of a law involves primarily the search for the legislature’s intent.” The interpretation of a statute starts with the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.
The laws of statutory construction require that laws on the same subject matter must be interpreted in reference to each other. The legislature is presumed to have acted with deliberation and to have enacted a statute in light of the preceding statutes involving the same subject matter. “Under our long-standing rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter.”
A statute must be “applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the Legislature had in enacting it.” In addition, “courts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided.”

Additionally, one must consider the following: “where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226.” City of Pineville v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 3352, 00-1983, p. 4 (La.6/29/01), 791 So.2d 609, 612.

In attempting to harmonize the two statutes, we note that if one included SSP in the calculation of a claimant’s weekly workers’ compensation benefit while the claimant was still receiving the SSP, the claimant would benefit from double | ¿recovery, the SSP plus sixty-six and two-thirds percent of the SSP. See La.R.S. 28:1221. However, once the state discontinued the SSP, there could be no chance of double recovery. The prevention of double recovery appears to be the purpose of La.R.S. 33:2218.4(D)’s exclusion of SSP from the calculation of workers’ compensation benefits. We find such to be the case.

However, when one reads the provisions of La.R.S. 23:1021(12)(e), one finds that the absolute prohibition mandated by the last portion of La.R.S. 33:2218.4(D) has been tempered by the more specific workers’ compensation statute, La.R.S. 23:1021(12)(e). The prohibition of La.R.S. 33:2218.4(D) is repeated in the beginning of the provision: “For municipal police officers, additional compensation paid by the state pursuant to R.S. 33:2218.4 shall not be included in the calculation and computation of total salary or average weekly wage ...,” however, that prohibition is then limited “to the extent such officer continues to receive such additional compensation during the period of his disability.”

Reading both statutes together and placing more weight on the more specific workers’ compensation statute, we find that if a police officer becomes disabled in the course and scope of his/her employment, SSP should be excluded from the calculation of his/her weekly compensation benefit during the time the officer continues to receive the SSP. Once the SSP ceases, the amount of that additional compensation should then be included in computation of total salary or average weekly wage for the calculation of weekly workers’ compensation benefits.

| ¡^Accordingly, for the reasons stated above, the ruling of the WCJ is affirmed. All costs of this appeal are assessed against the appellant, the Eunice Police Department.

AFFIRMED.


text:
    Diana Sue RAMIREZ v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
    No. 07-785.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Jackson Burke Bolinger, Lafayette, LA, for Defendant-Appellee: State Farm Mutual Automobile Insurance Company.
    Aaron Broussard, Broussard & Hart, Lake Charles, LA, for Plaintiff-Appellant: Diana Sue Ramirez.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

_JjThe plaintiff, Diana Ramirez, appeals a judgment of the trial court granting an exception of prescription and a motion for summary judgment in favor of the defendant, State Farm Mutual Automobile Insurance Co. (State Farm).

STATEMENT OF THE CASE

On August 7, 2003, Diana Ramirez was riding in a car driven by her husband, Kirk Tennison, when they were involved in a collision with another vehicle in Calcasieu Parish. The car was owned by Tennison’s father, and he was driving the car with his father’s permission. State Farm had issued an insurance policy on the vehicle, which included liability and uninsured/un-derinsured motorist (UM) coverage.

On May 18, 2005, Ramirez filed suit in an Oklahoma court against State Farm as the UM insurance carrier of the Tennison vehicle. In the petition, she acknowledges that the claim against State Farm as the liability insurer of the Tennison vehicle had prescribed. The suit was dismissed by the Oklahoma court on the grounds of forum non conveniens on August 26, 2005.

On October 24, 2005, Ramirez filed suit in Calcasieu Parish against Kirk Tennison and State Farm. The suit alleged that State Farm was liable as both the liability insurer and the UM insurer of the Tenni-son vehicle at the time of the collision. State Farm filed an exception of prescription, alleging that more than one year had passed since the date of the collision.

The trial court heard the exception of prescription on September 13, 2006. The trial court rendered a judgment dismissing State Farm in its capacity as the liability insurer of the Tennison vehicle on the grounds that the claim had prescribed. The 1 atrial court also dismissed Tennison from the suit on the ground that he was immune from suit under the spousal immunity statute. Ramirez filed a motion for rehearing of the exception of prescription, which the trial court set for hearing on January 9, 2007. Meanwhile, State Farm filed a motion for summary judgment alleging there were no genuine issues of material fact and State Farm was entitled to judgment as a matter of law. The motion was scheduled to be heard on January 9, 2007.

On January 9, 2007, the trial court heard both the motion for rehearing filed by Ramirez and the motion for summary judgment filed by State Farm. The trial court denied the motion for rehearing and granted the motion for summary judgment. A judgment in conformity with its decision was signed on February 26, 2007. Ramirez now appeals.

Ramirez has filed a motion to remand with this court, asking for a remand to the trial court so that she may amend her petition. This motion has been referred to the merits.

ASSIGNMENTS OF ERROR

The appellant, Diane Ramirez, asserts two assignments of error (footnotes omitted):

1. The trial court failed to recognize that an amendment to Louisiana’s UM statute nullifies Defendant’s UM coverage exclusion and overrules Breaux v. Government Employees Insurance Company, 369 So.2d 1335 (La.1979). Consequently, the trial court dismissed Plaintiffs UM claim.

2. The trial court failed to hold that Defendant’s letters to Plaintiff acknowledged liability sufficient to interrupt prescription. Further, the trial court failed to hold that notice of a pleading presenting a demand for which Defendant could be liable is sufficient to interrupt prescription. Consequently, the trial court dismissed Plaintiffs liability claim.

DISCUSSION

|aIn her first assignment of error, Ramirez alleges that an amendment to La.R.S. 22:680 has legislatively overruled the Louisiana Supreme Court’s holding in Breaux v. Government Employees Insurance Co., 369 So.2d 1335 (La.1979). Ramirez argues that she should be able to recover from the UM policy in effect at the time of the collision even though a clause in the policy expressly excludes the vehicle insured by the liability policy from the definition of “uninsured vehicle.” The trial court determined the holding in Breaux was applicable to this case and that State Farm was entitled to summary judgment.

An appellate court reviews summary judgments de novo, and applies the same criteria as the trial court in deciding if summary judgment is appropriate. Schroeder v. Bd. of Supervisors, 591 So.2d 342 (La.1991). The supreme court discussed appellate review of summary judgments in Duncan v. U.S.A.A. Insurance Co., 06-363, pp. 3 4 (La.11/29/06), 950 So.2d 544, 546-547:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

In Breaux, the supreme court determined that it was not against public policy for an insurance contract for UM coverage to exclude from its definition of “uninsured vehicle” a vehicle insured by the bodily injury liability coverage of the same policy. The result was that the family of a woman killed while a guest [¿passenger in a vehicle insured by GEICO could recover from the liability portion of the policy, but was not an insured under the terms of the UM section of the policy.

Louisiana Revised Statutes 22:680 is the statute which requires that automobile liability insurance policies include uninsured motorist coverage. Before 2003, this statute was designated as La.R.S. 22:1406. The legislature amended the statute in 1987, eight years after the decision in Breaux, to add what became subsection l(a)(iii) of La.R.S. 22:680. 1987 La.Acts No. 444, § 1. That amendment added the following language:

(iii) This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.

Ramirez argues that this language overrules Breaux. We disagree. The amendment requires that when an accident occurs in this state and involves a resident of this state, the requirements of La.R.S. 22:680 will be enforced, and any liability policy will be deemed to have UM coverage unless it' has been properly rejected as required in the statute. In the instant case, the issue is not whether the Tennison vehicle was covered by a liability policy which included UM coverage, the issue is the scope of the UM coverage. We find that the holding in Breaux is applicable to the facts of this case, and the trial court properly granted the motion for summary judgment. As we find the issue of Kirk Tennison’s residency is not an issue in this case, we also deny the motion to remand.

In her second assignment of error, Ramirez argues that the trial court improperly granted an exception of prescription as to the liability. The collision occurred on August 7, 2003. This suit was filed on October 24, 2005. Thus, the action was prescribed on its face, and the plaintiff bears the burden of proving | interruption or suspension of prescription. Bailey v. Khoury, 04-620 (La.1/20/05), 891 So.2d 1268.

Ramirez argues that prescription was interrupted initially by several letters from State Farm, which she argues admit liability. The last of those letters was sent on July 1, 2004. Thus, assuming those letters did interrupt prescription by acknowledgment, prescription would still have tolled on July 1, 2005. On May 18, 2005, Ramirez filed suit against State Farm in its capacity as UM carrier in Oklahoma. In that petition, Ramirez specifically states that the action against State Farm as liability insurer is time barred. The Oklahoma suit was dismissed on August 26, 2005.

We find that a petition which admits that an action is prescribed is insufficient to interrupt prescription as to that action for the purpose of filing a later suit. Therefore, even assuming for the sake of argument that the letters interrupted prescription so that prescription ran on July 1, 2005, the suit in this case is not timely. Thus, Ramirez’s assignment of error lacks merit.

CONCLUSION

The motion to remand is denied. The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, Diana Ramirez.

MOTION TO REMAND DENIED. AFFIRMED.