author: GREMILLION, Judge.

text:
    Robin WILLIAMS v. Dr. Robert MORROW.
    No. 07-464.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.
    George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellant, Robin Williams.
    Stephen M. Morrow, Sr., Morrow, Gates & Morrow, Opelousas, LA, for Defendant/Appellee, Dr. Robert Morrow.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

_JjThe plaintiff, Robin Williams, appeals the judgment of the workers’ compensation judge dismissing her claim with prejudice against the defendant, Dr. Robert Morrow, based on her failure to appear in court on the day of trial. We vacate and remand.

FACTS

Williams suffered a work-related injury during the course of her employment with Boise Cascade Company. She was referred to Dr. Morrow by her attorney. As she was seeing him based on an attorney referral, Dr. Morrow demanded pre-payment of her treatment and was paid two cheeks in the amounts of $500 and $635. After Boise Cascade commenced paying her medical expenses, Williams requested that Dr. Morrow reimburse her the amounts she pre-paid. When he refused, she filed a disputed claim for compensation seeking reimbursement with the Office of Workers’ Compensation. On the date of the trial, Williams’ counsel appeared ready to proceed with the matter; Williams was not present. However, after the hearing commenced, the workers’ compensation judge granted Dr. Morrow’s motion to dismiss Williams’ claims based on her failure to appear in court. A judgment was then rendered dismissing her claims with prejudice. This appeal by Williams followed.

ISSUE

On appeal, Williams argues that the workers’ compensation judge erred in granting an involuntary dismissal in favor of Dr. Morrow even though her counsel was present and ready to proceed with the trial.

J2APPEARANCE THROUGH COUNSEL

Louisiana Code of Civil Procedure Article 1672(A)(1) states, “A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.” However, Comment (g) indicates that the indirect source of Article 1672 contained language “referring to the failure of the plaintiff to appear ‘either in person or by attorney,’ ” and notes that this language was deleted from the current article as its inclusion was thought unnecessary. Comment (g) further states, “Appearance by a party is always either personally or through his counsel of record.” See Spencer v. Children’s Hosp., 432 So.2d 823 (La.1983); Jackson v. City of Westlake, 03-782 (La.App. 3 Cir. 12/10/03), 861 So.2d 771.

In reviewing this matter pursuant to the manifest error-clearly wrong standard, we find that the workers’ compensation judge was manifestly erroneous in granting Dr. Morrow’s motion for an involuntary dismissal of Williams’ claims. Williams’ counsel was present in court and was prepared to proceed with the matter. Because Williams made an appearance through counsel, Dr. Morrow was not entitled to have her claims dismissed with prejudice pursuant to Article 1672.

CONCLUSION

The judgment of the workers’ compensation judge is vacated and the matter is remanded for further proceedings. Costs of this appeal are assessed to the defendant-appellee, Dr. Robert Morrow.

JUDGMENT VACATED; REMANDED.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Dana R. McPHERSON v. CINGULAR WIRELESS, LLC.
    No. 07-0462.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Christopher L. Zaunbreeher, Lafayette, LA, for Plaintifí/Appellant, Dana R. McPherson.
    Phyllis G. Cancienne, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Baton Rouge, LA, Jennifer McNamara, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, New Orleans, LA, for Defendant/Appellee, Cingular Wireless, LLC.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PETERS, J.

liThe plaintiff in this litigation, Dana R. McPherson, appeals the trial court’s grant of a summary judgment dismissing her retaliatory discharge suit against her former employer and the defendant herein, Cingular Wireless, LLC (Cingular). For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The facts giving rise to this litigation are not in dispute. Prior to June 3, 2005, Ms. McPherson worked for Cingular at its Lafayette, Louisiana office. On that day, her area supervisor informed her that her employment with Cingular was terminated, effective immediately. She claims in her suit now before this court that her termination was in retaliation for her previous report to her employer that the same area ■ supervisor had altered a time stamp on an electronic communication.

Cingular responded to Ms. McPherson’s petition by filing, among other pleadings, a motion for summary judgment seeking dismissal of the suit on the basis that Ms. McPherson was an at-will employee and, therefore, her employment could be terminated at any time with or without cause. At the hearing on the motion, both sides relied on the language of a document entitled “Cingular’s Code of Business Conduct” (Code of Conduct) in support of their respective positions. With regard to an individual’s employment relationship, the Code of Conduct clearly establishes the at-will relationship with the following language:

Cingular retains the right to dismiss any employee, at any time, for any reason, subject to agreements with employee unions.
Cingular observes the employment at-will rule. The Company retains the right, subject to collective bargaining rights of union employees, to discharge any employee at any time for any reason, with or without cause, with or without notice, and without the need to comply with any plan or practice. laAt-will employment can be changed only in 'writing and only in a document signed by both the Senior VP, Human Resources and the employee. At-will employment cannot be changed verbally, or by any Cingular policies. Any contrary representation is invalid.

(Emphasis added.)

With regard to its non-retaliatory policy, the Code of Conduct provides with equal clarity that:

Employees are encouraged to report any suspected illegal or unethical behavior within Cingular. This includes, but is not limited to, reporting securities fraud, fraudulent financial reporting and all other types of illegal activity. Employees who report this type of misconduct are protected by law against discrimination and/or adverse employment action for uncovering securities fraud and other illegal activity or otherwise assisting in any proceedings dealing with securities fraud and/or other illegal activity. Retaliation of such reporting made in good faith is strictly prohibited, and Cin-gular will take all necessary action to ensure that employees are free from reprisal. This includes termination of employment of the offender, and the offender may also be subject to civil/criminal legal action, where appropriate. We are committed to following the law and will not tolerate any conduct that jeopardizes our legal responsibilities.

Following a bench trial, the trial court signed a judgment which states:

After consideration of the authorities cited, the argument of counsel, the pleadings herein and the Cingular Code of Business Conduct, it is the finding of this Court that the Plaintiff was an “at-will” employee. The provisions of the Cingular Code of Business Conduct relating to the reporting of unethical conduct within Cingular did not modify her “at-will” employment status.
Cingular was free to terminate the employment of the Plaintiff at any time, even if the termination were related to her reporting of the conduct of another employee. Accordingly, Summary Judgment is granted in favor of Cingu-lar and Plaintiffs suit is dismissed at Plaintiffs costs.

Thereafter, Ms. McPherson perfected this appeal.

OPINION

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is [ ¡¡appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. The inquiry is whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Id. In this case, there are no material factual disputes. The only document offered in support of the motion for summary judgment was the Code of Conduct, and its contents, as well as the allegations of the petition, are clear. Thus, there are only questions of law before us. Appellate courts decide questions of law de novo. Sabine Pariah Police Jury v. Comm’r of Alcohol & Tobacco Control, 04-1833 (La.4/12/05), 898 So.2d 1244.

This court stated in Leger v. Tyson Foods, Inc., 95-1055, p. 5 (La.App. 3 Cir. 1/31/96), 670 So.2d 397, 401, writ denied, 96-545 (La.4/19/96), 671 So.2d 920, that:

Under Louisiana law, when a person is employed for an indefinite period, he is an employee at will. Brannan v. Wyeth Labs., Inc., 526 So.2d 1101 (La.1988). Under the doctrine of employment at will, the employer and employee are free to terminate the employment relationship at any time without cause. La.Civ.Code art.2024.

However, as pointed out by the supreme court in Quebedeaux v. Dow Chemical Co., 01-2297, pp. 4-6 (La.6/21/02), 820 So.2d 542, 545-46:

The employer-employee relationship is a contractual relationship. As such, an employer and employee may negotiate the terms of an employment contract and agree to any terms not prohibited by law or public policy. When the employer and employee are silent on the terms of the employment contract, the civil code provides the default rule of employment-at-will.... This default rule is contained in LSA-C.C. art. 2747.
Under LSA-C.C. art. 2747, generally, “an employer is at liberty to dismiss an employee at any time for any reason without incurring | pliability for the discharge.” See Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2nd Cir. 1982). However, this right is tempered by numerous federal and state laws which proscribe certain reasons for dismissal of an at-will employee. For instance, an employee cannot be terminated because of his race, sex, or religious beliefs. Moreover, various state statutes prevent employers from discharging an employee for exercising certain statutory rights, such as the right to present workers’ compensation claims. Aside from the federal and state statutory exceptions, there are no “[b]road policy considerations creating exceptions to employment at will and affecting relations between employer and employee.” See Gil v. Metal Service Corp., 412 So.2d 706, 708 (La.App. 4th Cir.1982).

(Footnotes omitted.)

Ms. McPherson acknowledges that hex-employment relationship was basically that of an at-will employee. Furthennore, she does not assert that the reason for her dismissal violates other federal or state laws. Instead, she argues that the provisions of the Code of Conduct were a part of her employment agreement, thus modifying the at-will relationship. Specifically, she asserts that the Code of Conduct modified that relationship in such a way as to protect her from retaliation when she, in good faith, reported a co-employee suspected of violating his employment obligation to Cingular. Thus, in evaluating this argument, we must determine whether the Code of Conduct became a part of the employment contract between Ms. McPherson and Cingular. After carefully examining the entire Code of Conduct, we conclude that it did not.

“A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” La.Civ.Code art.1906. Four elements are necessary for formation of a contract in Louisiana: (1) capacity, (2) consent, (3) certain object, and (4) lawful cause. See Leger, 670 So.2d 397. “Both parties must be bound in order for there to be a contract.” Id. at 401. In this matter, we do not find that Cingular agreed to be bound by Ms. McPherson’s interpretation of the whistle-blower protection language.

|sThe Code of Conduct itself is divided into six sections and asserts on its cover page that the overall theme of the document is not that of expanding the at-will employment relationship, but that of “GUIDING [CINGULAR’S] REPUTATION.” While we have reviewed the entire Code of Conduct, we find that the language of the first two sections resolves the issue concerning how it affects the at-will relationship of Cingular’s employees.

The first section, which is entitled “OUR ‘CINGULAR’ RESPONSIBILITIES,” begins with a one-page letter from Cingular’s Chief Executive Officer addressed to his “Fellow Employee” wherein he states the importance of ethical behavior as it affects the reputation of the company. In the letter, he states that the Code of Conduct “provides basic guidelines to help [the employee] make ethical decisions” and provides “the general standards by which all Cingular employees ... should assess the propriety of their actions.” He further advises his fellow employees that “[a]ny failure on the part of an individual to meet the standards embodied in this Code can lead to disciplinary action, up to and including dismissal and criminal or' civil sanctions.”

The next section of the Code of Conduct contains both the employment at will and whistle-blower language previously quoted and is entitled “OUR PERSONAL COMMITMENT TO EACH OTHER AND THE BUSINESS.” As previously stated, this section makes it absolutely clear that the employment relationship is an at-will relationship governed by that basic rule with no modifications. That section is equally clear that this relationship can only be modified by written agreement between the appropriate Human Resources official and the employee and specifically | ¡¡stated that it “cannot be changed verbally, or by any Cingular policies,” and that “[a]ny contrary representation is invalid.” (Emphasis added.)

The whistle-blower language, on the other hand, does not specifically incorporate its perceived protection as an employment benefit. While requiring employee reporting activities as a condition of employment, it stops short of stating that protection against retaliation is an employment benefit. Instead, in the artfully drawn paragraph addressing this issue, it suggests that the reporting employee is “protected by law against discrimination and/or adverse employment action” and even then, only when the reporting is related to “securities fraud and/or other illegal activity.” (Emphasis added.) While stating that “[r]etaliation of such reporting made in good faith is strictly prohibited,” and that Cingular would “take all necessary action to ensure that employees are free from reprisal,” it never suggests that the employment relationship would be protected.

The remainder of the Code of Conduct is equally noncommittal. The language in the second section, which addresses the employee’s personal commitment to the Code of Conduct, reads as follows:

The Cingular Code of Business Conduct is just a beginning; it is not possible to describe all unethical or illegal business practices in full detail. The best guidelines are individual conscience, common sense and unwavering compliance with all applicable laws, regulations and contractual obligations. Corporate policy strictly forbids any retaliation against an employee who, in good faith, reports suspected wrongdoing.

(Emphasis added.)

Other language found in the Code of Conduct, while suggestive of protection for the reporting employee, fails to modify the clear language that “Cingular retains the right to dismiss any employee, at any time, for any reason, subject to agreements with employee unions,” and that it “observes the employment at-will rule.” The letter from 17the Chief Executive Officer found in the first section is followed in that section by the statement that “compliance with the [Code of Conduct] is a requirement of Cingular employment.” That same section lists six specific employee responsibilities, one of which is that of “Reporting others who are engaged in conduct inconsistent with this Code.”

Immediately after the employment at will language of the second section, the Code of Conduct states that “Cingular strictly prohibits all forms of unlawful harassment. Such conduct may result in disciplinary action, up to and including dismissal.” (Emphasis added.) This section of the Code of Conduct also provides that an individual who is the victim of threats and violence in the workplace may not be fully protected because it only promises “effective remedial action” against the perpetrator which could (not shall) include dismissal. In fact, within all of the four commitment sections of the Code of Conduct, responsibility for unethical or otherwise improper conduct is placed on the same level of importance as responsibility for illegal conduct. Among the specific rules of conduct which it enunciates is a requirement that Cingular computer systems users protect company information from improper alteration, and instructs that users must not alter or destroy data, information, or files without authorization. Thus, it specifically prohibits an employee from doing what Ms. McPherson accused her area supervisor of doing: altering company data. Furthermore, reporting violations is declared to be a standard expected of every employee. The importance of reporting is underlined by this warning: “Remember that failing to report suspected violations is itself a violation.”

Our careful review of Cingular’s Code of Conduct causes us to conclude that the only thing set in stone is the policy that all employees are governed by the Isunmodified at-will doctrine. While Cingular’s artfully drawn language strongly implies protection, it is clear that Cingu-lar never consented to making the whistle-blower protection a condition of the employment agreement. In fact, reporting wrongful conduct is simply one of the many responsibilities of employment. Absent the element of consent, Ms. McPherson’s at-will contract was not modified by the language of the Code of Conduct.

We noted in Leger, 670 So.2d 397, that there exists no Louisiana jurisprudence in which an employee manual has been held to confer any contractual rights upon an employee or to create any exceptions to the employment-at-will doctrine. Our review of the jurisprudence since that 1996 decision reveals that there are still no such cases. We are unable to differentiate the Code of Conduct in the present case from a manual, or handbook, or set of guidelines, and this case, like Leger, provides no justification to change the established law of Louisiana with regard to employee handbooks.

We also emphasized in Leger that among the other reasons for finding no modification of the employment agreement was that the manual at issue therein contained a disclaimer that “the material contained in the manual was purely informational in nature and was not binding on [the employer].” Id. at 401. In the present case, the Code of Conduct’s express reaffirmation of the at-will nature of employment is equally assertive of a disclaimer. In summary, our review of the Code of Conduct convinces us that it cannot be regarded as a modification of Ms. McPherson’s terminable-at-will status. “The existence vel non of a contractual relationship is a question of law and not a question of fact, and therefore, it is a proper basis for the granting of a motion for summary judgment.” Id. at 402. We find no merit in Ms. McPherson’s first argument.

IqMs. McPherson next asserts that, even if the Code of Conduct is not a part of the employment contract, there exists a material issue of fact as to her justifiable reliance, to her detriment, on Cingular’s commitment to its policy prohibiting any retaliation against any employee who reports wrongful conduct. We find no merit in this argument.

Louisiana Civil Code Article 1967 provides that “[a] party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying.” To establish detrimental reliance, a party must prove three elements: (1) a representation by word or conduct; (2) justifiable reliance; and (3) a change in position to one’s detriment because of that reliance. Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37. The doctrine of detrimental reliance is not favored by Louisiana law, and all claims must be examined strictly and carefully. Moroux v. Toce, 06-831, 06-832 (La.App. 3 Cir. 11/2/06), 943 So.2d 1263, writ denied, 07-117 (La.3/16/07), 952 So.2d 698. Cingular’s burden on the motion for summary judgment did not require it to negate all three essential elements of Ms. McPherson’s alternative claim of detrimental reliance, but rather to point out to the court that there was an absence of factual support for one or more elements essential to her claim. La.Code Civ.P. art. 966(C)(2).

As we previously stated, the Code of Conduct did not contain a promise to protect an at-will employee against discharge for complying with the responsibilities of employment. It merely enunciated its policy forbidding retaliation against an employee for reporting wrongdoing. Ms. McPherson could not reasonably have Imrelied on that policy, as it was expressed in terms of a commitment to guide or protect the reputation of Cingular and not as a promise to protect her against discharge for complying with that responsibility of her employment. Ms. McPherson’s subjective expectation that Cingular would extend its policy forbidding any retaliation against an employee reporting wrongdoing to the point of protection against discharge for that reason was not reasonable. Ms. McPherson has failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial to recover under the theory of detrimental reliance, and there is thus no genuine issue of material fact remaining as to this issue. Equitable estoppel is not an alternative remedy available to Ms. McPherson in this case.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of the summary judgment in favor of Cingular Wireless, LLC, dismissing the demands of Dana R. McPherson. We assess all costs of this appeal to Dana R. McPherson.

AFFIRMED.


text:
    STATE of Louisiana v. Harry COWARD.
    No. 07-0421.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Earl B. Taylor, District Attorney, Alisa Ardoin Gothreaux, Assistant District Attorney, Parish of Saint Landry, Opelousas, LA, for Appellee, State of Louisiana.
    W. Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Harry Coward.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PETERS, J.

l iThe defendant, Harry Coward, was convicted by a jury of the offense of attempted simple burglary, a violation of La.R.S. 14:27 and La.R.S. 14:62. He now appeals his conviction and sentence, asserting two assignments of error. For the following reasons, we affirm the conviction but amend the sentence.

DISCUSSION OF THE RECORD

The State of Louisiana (state) originally charged the defendant with one count of simple burglary, a violation of La.R.S. 14:62, and one count of theft of property having a value in excess of $500.00, a violation of La.R.S. 14:67(B)(1). The charges arise from the November 18, 2003 burglary of the Manuel Oil Company office located in a building in Eunice, Louisiana. Both Manuel Oil Company and the building wherein the business was located belonged to Tanny Devillier. At the May 30, 2006 trial on the merits, the jury convicted the defendant of the responsive verdict of attempted simple burglary.

There is little dispute concerning the facts giving rise to the charges. Mr. Dev-illier operates a number of business enterprises out of the burglarized office, and most of these enterprises generate cash money which is often kept on the premises for days before being deposited. In fact, according to Mr. Devillier, at least $500.00 was on hand at all times, and most of the time much more cash was present. Because the defendant had been employed by Mr. Devillier in one or more of his businesses for approximately five years before the burglary, and because the defendant was in the office often enough to observe the way the cash was handled, he had inside knowledge of the business operation.

The defendant left Mr. Devillier’s employ approximately one month before the burglary, but visited the office on at least two occasions in the two weeks before the | ^burglary. During those visits, he had the opportunity to observe Michelle Brown, the office manager, count and store cash money.

A few minutes after 10:00 p.m. on November 18, 2003, a gasoline station attendant at a station near the Devillier office building telephoned the Eunice Police Department and advised the dispatcher that a burglary was in progress in the building. One of the first officers who responded to the report approached the front door of the office building and observed movement therein. He alerted other officers who were on the way to the rear of the building and, as those officers moved into position, they observed the defendant standing a few steps outside of an obviously damaged rear door to the building and holding a pair of green gloves. The investigating officers found a red sports utility vehicle (SUV) parked near the area where they encountered the defendant, and during the subsequent investigation they found a pair of bolt cutters and a screwdriver on the back seat of the SUV. According to the defendant’s son, the red SUV belonged to his mother.

When the officers entered the darkened building, they found that the door where the defendant was found had been broken away and that the office itself was in disarray with filing cabinets lying about, desk drawers opened, money scattered about, and a security light broken. The perpetrator had gained access to the building by cutting a hasp on the door, and gained access to the contents of the filing cabinets by cutting four locks. Scientific testing of the hasp and locks revealed that they were cut with a tool similar to a bolt cutter. Later that evening at the Eunice Police Station, one of the officers observed a still-bleeding cut on the defendant’s hand. However, at no time during the investigation did the officers find any money or property belonging to Mr. Devillier on the defendant’s person.

InMr. Devillier was out of the state on the night of the burglary, and Ms. Brown was called to the scene to inventory the damage and inform the investigating officers of exactly what was missing. According to the written report of one of the officers, Ms. Brown reported only that a money box was missing and that it contained $1,064.10. However, at trial, she testified that in addition to the missing box containing approximately $1,000.00, a number of sealed envelopes containing cash rent money of between $1,500.00 and $2,000.00 were also missing.

In his appeal, the defendant asserts two assignments of error: (1) that the evidence was insufficient to establish his guilt beyond a reasonable doubt of the offense of attempted simple burglary, and (2) that the sentence imposed is excessive.

OPINION

Assignment of EiTor Number One

In arguing that the evidence is insufficient to support his conviction, the defendant asserts that the state failed to establish that he took the money Ms. Brown reported missing, failed to establish that he entered the building without permission, and failed to establish that he entered the building with the specific intent to commit theft. In fact, he argues that the state failed to establish that he entered the building at all. The defendant further asserts that the state failed to disprove the reasonable hypothesis that the defendant was merely checking on a strange vehicle at the location, and that the state’s loss of a interview tape prevented him from establishing a reasonable hypothesis of innocence. Finally, he also complains that Detective Robert Brickley, who was the lead investigator in the matter, had resigned from the Eunice Police Department by the time of trial and had given no explanation for his resignation.

14When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). Louisiana Revised Statutes 14:62(A) provides in pertinent part that “[sjimple burglary is the unauthorized entering of any ... structure ... with the intent to commit a felony or any theft therein.” The previously described factual scenario establishes each of the elements of proof found in this statute. Additionally, the defendant failed to submit any evidence in support of any other reasonable hypothesis of innocence, and failed to either allege or prove that the reason behind Detective Brickley’s resignation would have been relevant to the defendant’s case. In fact, the defendant had the opportunity at trial to question Detective Brickley concerning this issue and did not take advantage of that opportunity.

While we find that the evidence presented would support a verdict of simple burglary, the jury returned only a verdict of attempted simple burglary. We also find that the evidence supports the jury’s verdict. Louisiana Revised Statutes 14:27(A) provides that

[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Additionally, “[a]n attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on |sthe trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.” La.R.S. 14:27(C).

We find no merit in this assignment of error.

Assignment of Error Number Two

In his second assignment of error, the defendant asserts that his sentence is excessive. Specifically, the defendant argues that the trial court placed too much emphasis on his prior criminal history and gave too little weight to his age and the evidence of his rehabilitation. The defendant also contends that, because there is no evidence in the record regarding the amount taken, the trial court erred in requiring that he pay $2,450.00 in restitution.

In sentencing the defendant, the trial court made the following comments:

The Court has before it Mr. Paul Harry Coward who is a sixty-four year old male with a fifth grade education. The defendant has lived in the Lake Charles, California and the Eunice areas.
Since the late 1980’s, he has been receiving Social Security disability and has also worked part time as a concrete finisher. He also worked part time for the victim in this matter from the 1980’s up until either when this crime was committed or shortly thereafter.
The defendant is married, has six children, the youngest of which the Court understands is in college. The Court has received correspondence from friends or acquaintances of the defendant appealing for leniency on the basis that the defendant has had a change of lifestyles and is needed at home by his wife and college age child but the PSI shows someone other than a stalwart community member and a devoted family man.
The PSI shows Mr. Coward to have an extended criminal history including the offenses of felony theft, simple rape, PC burglary in California, forgery, carrying a prohibited weapon without a license, simple obstruction of a highway, issuing worthless checks, simple battery, disturbing the peace and the instant offense for which he was convicted, attempted simple burglary.
| r,In each of the last five decades, the defendant has been in trouble with the law and is classified as a fifth felony offender. He is not eligible for probation or a suspended sentence.
The Court, in considering the goals of sentencing as being deterrence, rehabilitation and the protection of the public and also considering the guidelines of sentencing set forth in the Code of Criminal Procedure Article 894.1, paragraph (A), that the defendant poses an undue risk of committing another crime if granted a probationary sentence and a lesser sentence would be a deprecation of the seriousness of the defendant’s crime, the Court does therefore sentence this defendant to three years hard labor and orders the defendant to pay restitution to the victim of two thousand, four hundred fifty dollars as outlined in the presentence investigative report. The Court also orders him, as a part of the sentence, to pay all costs of court.

Louisiana Revised Statutes 14:62(B) provides that an individual convicted of simple burglary may be sentenced to up to twelve years with or without hard labor. When one is convicted of an attempt to commit an offence, the maximum possible penalty is “one-half of the longest term of imprisonment prescribed for the offense so attempted.” La.R.S. 14:27(D)(3). Thus, the defendant’s sentence of three years at hard labor was one-half the maximum he could have received.

The trial court has wide discretion in imposing sentence on an individual within the statutory limits, and this court should not set aside a sentence absent manifest abuse of that wide discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7. However, a sentence within statutory limits may be excessive if the penalty imposed shocks our sense of justice or if it makes no reasonable contribution to any reasonable penal goal, thereby constituting nothing more than the imposition of needless pain and suffering. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, this court stated that “[i]n deciding whether a sentence is shocking or makes no meaningful contribution to 17acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes.” However, even though sentences for similar crimes may be compared, the ultimate sentence must be individualized. Id.

Here the nature of the offense explains the legislative purpose in providing for a substantial incarceration sentence. There exists a basic need for us to feel safe in our person, property, and things. Additionally, the sentence imposed is consistent with those imposed for similar offenses. See State v. Jones, 596 So.2d 1360 (La.App. 1 Cir.), writ denied, 598 So.2d 373 (La.1992), and State v. Mallett, 535 So.2d 400 (La. App. 3 Cir.1988). Finally, the trial court clearly individualized the sentence by considering all aggravating and mitigating factors in sentencing the defendant. Thus, we find that the incarceration sentence does not shock our sense of justice and does make a reasonable contribution to acceptable penal goals. We affirm the defendant’s incarceration sentence in all respects.

The defendant also asserts that the trial court erred in ordering him to pay $2,450.00 restitution. We find merit in this assertion.

This court, in State v. Williamson, 04-1440 (La.App. 3 Cir. 3/2/05), 896 So.2d 302, acknowledged that several articles in the Louisiana Code of Criminal Procedure provide for restitution and that imposition of restitution is within the vast discretion of the trial court. However, this court also recognized in Williamson that the supreme court, in State v. Sandifer, 359 So.2d 990 (La.1978) limited the trial court’s discretion by requiring it to hold a hearing at which a defendant could question the amount of restitution to be imposed.

[sIn the matter now before us, the trial court relied solely on the information provided by Mr. Devillier to the individual preparing the presentence investigation report in setting the amount of restitution. Mr. Devillier is quoted in the report as itemizing his loss at $50.00 in damages to the building, $400.00 for a broken antique clown, and $2,000.00 in cash stolen from the office. Not only was the defendant not afforded an opportunity to question the amounts at a restitution hearing, but the trial record conflicts with Mr. Devillier’s estimation of cash stolen.

The need for a restitution hearing is made clear by Mr. Devillier’s and Ms. Brown’s testimony at trial. Although he was not in the state when the burglary occurred, Mr. Devillier testified as to the significant amounts of cash always present at his office. Additionally, although one of Ms. Brown’s responsibilities was to maintain records of the business transactions, she provided one specific figure on the night of the burglary, but could only provide general answers at trial concerning the financial loss. Thus, the record establishes only that the money taken the night of the burglary ranged from $1,064.10 up to $3,000.00.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction in all respects. We affirm the incarceration sentence imposed but vacate the imposition of restitution and remand the matter to the trial court with instructions to conduct a hearing to determine the amount of restitution which should be imposed.

CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.


author: SAUNDERS, Judge.

text:
    STATE of Louisiana, through the SABINE RIVER AUTHORITY v. MEYER & ASSOCIATES, INC., et al.
    Nos. CA 07-214, CA 07-215.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Travis Louis Bourgeois, Degan, Blanchard & Nash, New Orleans, LA, for Third Party Appellee, Mays Construction, LLC.
    Carlton Jones, Roedel, Parsons, Koch, Blache, Balhoff, & McCollister, A.L.C., Baton Rouge, LA, for Defendant/Appellant, Pat Williams Construction, Inc.
    Craig L. Raster, Craig L. Raster & Associates, Zachary, LA, for Defendant/Appellant, Prestridge Painting, LLC.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

11 This case arises from the construction of the Cypress Bend Conference Center (hereinafter “the conference center”). Two general contractors were sued by the State of Louisiana, through the Sabine River Authority, for damages related to mold and moisture intrusion. In response, one of the general contractors filed third party demands against various subcontractors. That general contractor had already reached settlement with the two subcontractors party to this appeal on issues stemming from the same conference center project.

Both subcontractors filed Exceptions of Res Judicata based upon the settlements they respectively reached with the general contractor. The trial court granted both exceptions and the general contractor appealed.

We affirm the trial court’s granting of the Exceptions of Res Judicata. We assess all costs of this appeal to the general contractor.

FACTS AND PROCEDURAL HISTORY:

This case results from the construction of the Cypress Bend Conference Center located near Many, Louisiana, on property owned by the Sabine River Authority. In 1998, after a public bid, the Sabine River Authority contracted with Pat Williams Construction (hereinafter “Pat Williams”) to build the conference center on Toledo Bend Reservoir. Pat Williams thereafter subcontracted with -Prestridge Painting, LLC (hereinafter “Prestridge”) to provide and install tape, float, corner bead, paint and wall covering at the conference center.

After the conference center project was completed, Prestridge and Pat Williams filed claims against each other and the matter was referred to arbitration. On September 11, 2001, the arbitrator awarded Prestridge $64,207.26 and dismissed Pat Williams’ counterclaim related to the conference center project. As a result of Pat | ¿Williams failing to voluntarily pay the arbitration award, Prestridge prepared a rule to show cause to enforce the arbitration award. Prior to the hearing on the rule to show cause, Pat Williams and Pres-tridge reached a settlement.

Pat Williams also subcontracted with Mays Construction, LLC (hereinafter “Mays”) to install the suspended ceiling, metal framing, drywall, roof installation and fiberglass reinforced plastic panels at the conference center. After the conference center project was completed, Pat Williams disputed the amount of money that Mays claimed it was owed for work done on the project. Mays filed a Demand for Arbitration on March 21, 2003, seeking payment of $26,740.19, which Mays claimed it was owed for its work at the conference center. Pat Williams filed an answer seeking over $100,000 in delay damages. On May 20, 2003, prior to any arbitration, Pat Williams and Mays reached a settlement.

On November 10, 2004, a petition for damages was filed on behalf of the State of Louisiana, through the Sabine River Authority, against Pat Williams Construction alleging construction defects in the conference center that resulted in development of mold and moisture intrusion. On August 17, 2006, Pat Williams Construction filed a third party demand against both Prestridge and Mays, along with many other subcontractors, seeking indemnification for any damages that the Sabine River Authority was awarded in the principle claim associated with their respective subcontracts.

Both Prestridge and Mays filed a Peremptory Exception of Res Judicata based upon transaction or compromise agreements they had entered into with Pat Williams. Based upon these agreements, the trial court sustained both Peremptory Exceptions of Res Judicata and released Prestridge and Mays from the suit.

[¿Pat Williams filed an appeal alleging the trial court’s rulings were in error. We affirm the trial court’s rulings and assess all costs of this appeal to Pat Williams. ANCILLARY MATTER:

Pat Williams has filed a Motion to Supplement the Record or, in the alternative, to remand the case to the trial court for consideration of new evidence. We hereby deny its motion.

Pat Williams’ motion is an attempt to supplement the record. Louisiana Code of Civil Procedure article 2132 provides:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

Pat Williams’ motion does not seek to correct any facts or misstatements, nor does it allege any deficiencies in the record. Its motion seeks to enter into the record depositions taken after the hearings on Prestridge and Mays’ Peremptory Exceptions of Res Judicata. This is a request to enter into the record new evidence not heard by the trial court. An appellate court is not vested with the right to hear new evidence not part of the record in the trial court. See White v. W. Carroll Hosp., Inc., 613 So.2d 150 (La.1992). Thus, this request to supplement the record is denied.

In the alternative, Pat Williams asked that the case be remanded to the trial court for submission of the new evidence. Remanding a case to the trial level for introduction of evidence is solely discretionary and is “sparingly exercised.” Jones v. LeDay, 373 So.2d 787, 789 (La.App. 3 Cir.1979); La.Code. Civ.P. art. 2164. However, in order to prevent a miscarriage of justice, an appellate court should determine whether to use this discretionary power on a case-by-case basis. Jones, 373 So.2d 787.

Here, Pat Williams is seeking to introduce parole evidence to vitiate the meaning of the language used in the settlement compromises it reached with both Pres-tridge and Mays. Such evidence is only used when the terms of an agreement are ambiguous. We find in both assignments of error that such evidence is not necessary as we find both agreements clear, explicit and unambiguous. As such, Pat Williams’ request to remand the case to the trial court for admission of new evidence is also denied.

ASSIGNMENT OF ERROR # 1:

Pat Williams asserts that the trial court erred by sustaining the Exception of Res Judicata filed by Prestridge given that there is no evidence in the record that the claims of mold and moisture intrusion existed when Prestridge and Pat Williams arbitrated issues related to the construction of the Cypress Bend Conference Center. We disagree.

If the Peremptory Exception of Res Judicata is raised prior to the case being submitted, and if evidence is received from both parties, then the standard of review for a ruling on whether to sustain that exception is manifest error. Ortego v. State, through the Dep’t. of Transp. and Dev., 96-1322 (La.2/25/97), 689 So.2d 1358.

The Peremptory Exception of Res Judicata is ordinarily based upon a final judgment between the parties, however, when parties put an end to a lawsuit by adjusting their differences and entering into a written transaction or compromise; that written instrument has the effect of a thing adjudged between the parties. Bowden v. State Farm Mut. Auto. Ins. Co., 150 So.2d 655 (La.App. 3rd Cir.1963).

Louisiana Civil Code Article 3078, in pertinent part, states, “Transactions have, between the interested parties, a force equal to the authority of things adjudged.” As such, the basis for pleading the Peremptory Exception of Res Judicata can be a valid transaction or compromise entered into by the parties. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741.

Interpretation of the written transaction or compromise instrument is governed by the rales of construction generally applicable to contracts. Brown, 630 So.2d 741. “Interpretation of a contract is the determination of the common intent of the parties.” La.Civ.Code art.2045. In attempting to determine the common intent of the parties, first, a court must look to the language of the written instrument. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code art.2046.

In the case before us, Pat Williams and Prestridge entered into a valid transaction or compromise. The pertinent language in that agreement is as follows:

Prestridge and Williams hereby do release, acquit and forever discharge each other to include their insurers, directors and/or officers for any and all past, present, and/or future claims, demands, loses, damages, causes of action, and rights of action whatsoever to which either party is entitled against the other, resulting from or arising out of the project and agreement. (Emphasis added.)

The “projects” as defined in the agreement include the construction of the G-2 Conference Center and the Alexandria Housing Authority. Here, Pat Williams has brought a third party claim against Prestridge for a future claim resulting from or arising out of one of the “projects,” the G-2 Conference Center. As such, it is clear from the language of the transaction or compromise that Pat Williams released Prestridge from this third party claim it has asserted.

Pat Williams argues that the transaction or compromise did not include the claims related to moisture and mold at the conference center as it did not know that | (¿hose claims existed when it entered into the agreement. This argument lacks merit.

Pat Williams cites Brown, 630 So.2d 741, to bolster its contention that the settlement agreement in the case before us should not be stretched to include future claims. The Brown case involved the beneficiaries of a tort victim bringing' a wrongful death action after the tort victim and his wife signed a settlement agreement releasing various defendants. Unlike the case before us, the court in Brown found ambiguity in the language of the settlement agreement as to whether the potential wrongful death claims of the tort victim’s beneficiaries were released. In Brown, the court noted that “the instrument does not clearly contemplate a release of future wrongful death claims.” Id at 746.

Here, there is no such ambiguity. Clearly, had Pat Williams wanted to prevent its release of unknown future claims, it would not have agreed to release Pres-tridge from “any and all future claims.” It is counterintuitive for Pat Williams to agree to this language and then claim its understanding was only to release Pres-tridge from those future claims it had knowledge would eventually exist. As such, given the clear and explicit language of the agreement, it was not unreasonable for the trial court to find that the transaction or compromise included the third party claim Pat Williams brought against Prestridge.

In oral argument, Pat Williams points out it did not sign the settlement agreement in the record between it and Prestridge and contends that it has no knowledge if the agreement in the record accurately reflects the settlement document it and Prestridge confected. It is true that the settlement agreement Pres-tridge entered into evidence is not signed by Pat Williams or any of its representatives. However, it is also true that Pat Williams did not contest the authenticity of the agreement 17submitted by Prestridge at the res judicata hearing. Moreover, Pat Williams did not raise any assignment of error regarding this issue, nor did it even bring this issue to light in brief.

An appellate court cannot consider an argument not considered in the court below as it has not been addressed. Boudreaux v. State, Dep’t. of Transp. and Dev., 01-1329 (La.2/26/02), 815 So.2d 7. Given that Pat Williams did not raise the issue of the authenticity of the settlement agreement entered into the record prior to the appellate level, that argument has been waived. Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112.

Accordingly, we find that Pat Williams’ claim that the trial court erred by sustaining the Peremptory Exception of Res Judi-cata filed by Prestridge is without merit. As such, we affirm the trial court’s ruling.

ASSIGNMENT OF ERROR # 2:

Pat Williams asserts that the trial court erred by sustaining the Exception of Res Judicata filed by Mays given that there is no evidence in the record that the claims of mold and moisture intrusion existed when Mays and Pat Williams began arbitration proceedings in 2003, or when they entered into the July 10, 2003, release. Again, we disagree.

As in Assignment of Error # 1, the standard of review for this assignment of error is that of manifest error. Mays and Pat Williams, like Prestridge and Pat Williams, entered into a valid transaction or compromise. Also, as before, if the language of the written transaction or compromise clearly and explicitly includes a mutual consent of the parties to settle all of their differences regarding an object that arises from the same transaction or occurrence as the current suit, then that suit is | ^barred by the Peremptory Exception of Res Judicata.

In the case of Mays, the pertinent language in the transaction or compromise is as follows (Emphasis added):

For and in consideration of the agreements above by Mays, PWC [Pat Williams Construction] does hereby release, acquit, and forever discharge Mays ... from all claims, causes of action, demands, rights, damages, costs, expenses, attorney’s fees, and any compensatory, consequential (including lost profits and lost revenue) and pecuniary damages, and any loss of any kind whatsoever under contract, statute, or law ivhich PWC noiv has, or which may hereafter accrue on account of or in any %vay relating to or arising otit of the Project and/or any and all claims set forth or which could have been set forth in the Arbitration.

The transaction or compromise agreement defines “the Project” as “Resort Conference Center Complex, 2000 Cypress Bend Parkway, Many, Louisiana 71449, Contract ‘G2’.... ” Thus, according to the clear language of the agreement, Pat Williams released Mays from all claims which it then had, or which thereafter accrued in any way related to, or arising out of, the conference center project. As such, it is clear from the language of the transaction or compromise that Pat Williams released Mays from this third party claim it has asserted.

Again, Pat Williams argues that it could not release Mays from a claim it did not know existed at the time of entering into the agreement. Just as in Assignment of Error # 1, that argument lacks merit.

If Pat Williams was concerned about future claims, then it would not have agreed to include language that very clearly releases Mays from any claims whatsoever that “which may hereafter accrue on account of or in any way relating to or arising out of the Project.” Therefore, it was not unreasonable for the trial court to find that the clear, explicit language of the transaction or compromise necessitates a finding that Pat Williams released this third party claim against Mays.

Accordingly, we find that the trial court did not err by releasing Mays from the | asuit. Thus, we affirm its ruling on Mays’ Peremptory Exception of Res Judicata.

CONCLUSION:

Pat Williams raised two assignments of error. We affirm the trial court on both assignments. All costs associated with this appeal are to be paid by Pat Williams.

AFFIRMED.


author: J. DAVID PAINTER, Judge.

text:
    Michael C. PARRISH v. VAN-TEL COMMUNICATIONS.
    No. 07-454.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 2007.

      Thomas B. Delsa, Attorney at Law, Cov-ington, LA, for Defendant-Appellant: Van-Tel Communications.
    James Patrick MacManus, Attorney at Law, LaFayette, LA, for Plaintiff-Appel-lee: Michael C. Parrish.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION and J. DAVID PAINTER, Judges.
   J. DAVID PAINTER, Judge.

[ | The employer, Van-Tel Communications (Van-Tel), appeals the ruling of the workers’ compensation judge (WCJ) finding that an on-the-job accident occurred while the employee, Michael Parrish, was in the course and scope of his employment, concluded that he is owed indemnity benefits, holding that Van-Tel was arbitrary and capricious in refusing to pay medical and weekly indemnity, and awarding penalties and attorney’s fees. Finding no manifest error in this ruling, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 2, 2004, Parrish was working as a cable installer for Van-Tel. He lost control of an twenty-eight foot extension ladder while trying to move it and fell, injuring his shoulder and incurring a hernia. The employer did not pay benefits or medical expenses. Parrish filed a disputed claim for compensation in 2004. He returned to work in April 2006. A hearing was held in August 2006, which resulted in a ruling in Parrish’s favor. Van-Tel appeals.

DISCUSSION

Fraud

Van-Tel first asserts that the trial court erred in failing to find that Parrish made false statements for the purpose of obtaining workers’ compensation benefits so as to forfeit his right to benefits under the provisions of La.R.S. 23:1208(E).-

Van-Tel asserts that Parrish withheld and/or misrepresented information about previous accidents and.injuries in order to receive workers’ compensation benefits.

This court in Doyal v. Vernon Parish Sch. Bd., 06-1088, pp. 6-7 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, 907-08, discussed the application of La.R.S. 23:1208:

Louisiana Revised Statutes 23:1208, entitled “Misrepresentations concerning benefit payments; penalty,” provides, in part:
LA. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.
The above provision requires only “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment” before the forfeiture required by La.R.S. 23:1208 is applied. Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. A workers’ compensation judge’s determination as to the existence of the above factors will not be reversed on appeal absent manifest error. Murphy v. Brookshire Grocery Co., 02-808 (La.App. 3 Cir. 12/11/02), 832 So.2d 1157.

The trial court, in oral reasons for judgment, stated with regard to possible misrepresentations by Parrish, that:

The defense contends that Mr. Parrish outright lied about his pre-employment accidents, accusing him of “cleverly and craft[ily]” denying ever having suffered right shoulder pain prior to the ladder falling incident. I listened to Mr. Parrish carefully for the better part of the day, and the terms “clever and crafty” never came to my mind as approaching apt descriptors of the claimant. He is not particularly articulate, and his train of thought does seem at times trackless; but there is just no evidence that he set about to deliberately withhold information from his employer.
While it’s true that Mr. Parrish was involved in a car wreck previously, and his shoulder was injured to some degree; he explained that it was such a minor injury that he never sought treatment for it. And I cannot find in the medical records submitted any evidence by the defendant that this, in fact, was not true.
.... I find no statements from Dr. DeAraujo, Dr. Morrow, or anyone else, except the claimant, to support this employer’s fraud claim.

|,tAffcer reviewing the record herein, we find that it supports the trial court’s factual determination. Accordingly, we find no error in the trial court’s determination as to fraud.

Benefits

Van-Tel next argues that Parrish failed to adduce sufficient evidence to show a causal connection between his shoulder injury and hernia and the on-the-job accident.

“An employee in a worker’s compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition.” Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334. An employee’s disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves afterwards. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). However, the presumption requires either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and disabling condition, or that the nature of the accident, when- combined with the other facts of the case, raises a natural inference through human experience of such a causal connection. Id.

Marks v. 84 Number Co., 06-358, pp. 3-4 (La.App. 3 Cir. 9/27/06), 939 So.2d 723, 727.

The trial court, in its oral reasons for judgment, found that Parrish carried his burden of proof, as follows:

Taking the extensive live testimony and the medical information into account, the Court finds that Michael Parrish has met his burden of proof showing a causal relationship between the June 2, 2004 incident and the hernia. The medical evidence on its face does not lend as much support to a connection between the shoulder injury and the incident, but the claimant’s testimony is very persuasive, depicting a short man wrestling with a unwieldy, very tall ladder.

Unless these findings are clearly wrong or manifestly erroneous, this court may not overturn them. Id. Even where “there is a conflict' in the testimony, | Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

The record contains extensive medical records for Parrish that pre-date the accident. Nothing in those records suggests Parrish had hernia symptoms prior to the accident. Although there is evidence of a possible prior shoulder injury, the evidence pointed to by Van-Tel shows that more than a year passed between the last mention of shoulder complaints in the medical records and the accident made the basis of this claim. Given Parrish’s testimony that'his hernia and shoulder symptoms began after the accident, the lack of evidence of prior complaints of hernia symptoms and the lack of shoulder symptoms during the year prior to the accident, we find the trial court’s credibility evaluations and inferences of fact are reasonable in light of the evidence of record. Therefore, they will not be overturned.

Penalties and Attorney’s Fees

Van-Tel appeals the WCJ’s award of a two thousand dollar penalty for failure to play Parrish’s medical bills, a two thousand dollar penalty for failure to pay indemnity, and attorney’s fees of seven thousand five hundred dollars. Van-Tel first argues that the WCJ erred in making any award of penalties or attorney’s fees because Hearing Rule 6201 provides that only matters listed in the pre-trial order may be litigated and the issue of penalties and attorney’s fees was not listed. This court previously considered this issue in Douglas v. Grey Wolf Drilling Co., 03-515, pp. 6-7 (La.App. 3 Cir. 11/5/03), 858 So.2d 830, 834-35:

15Hearing Rule 6201 provides that only those issues listed in the pre-trial statements shall be litigated at trial, except by written order of the WCJ for good cause or by agreement of the parties.
Louisiana Revised Statutes 23:1317(A) (emphasis added) provides, in part:
The ruorkers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence.... The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.
In Meche v. Foremost Management Corp., 93-1390, p. 5 (La.App. 3 Cir. 5/4/94), 640 So.2d 585, 587, writ denied, 96-152 (La.3/15/96), 669 So.2d 429 quoting Keyes v. Rockwood Ins. Co., 502 So.2d 223, 228 (La.App. 3 Cir.1987)), we stated that La.R.S. 23:1317 “reflects the legislature’s intent, in compensation cases, to materially relax evidentiary and procedural rules and subordinate procedural considerations to the discovery of the truth and the protection of substantive rights.” Additionally, as explained in Vernon v. Wade Correctional Institute, 26,053, p. 5 (La.App. 2 Cir. 8/19/94), 642 So.2d 684, 688 (emphasis added), “[t]he theory inherent in pretrial procedure is the avoidance of surprise and the allowance of the orderly disposition of the case.”
In Starkman v. Munholland United Methodist Church, 97-661 (La.App. 5 Cir. 1/14/98), 707 So.2d 1277, writ denied, 98-400 (La.3/27/98), 716 So.2d 891, the court found that the claimant’s failure to file a pre-trial statement supported the WCJ’s exclusion of the testimony of a witness, a close friend of the claimant’s. However, the claimant did present other evidence in support of her claim, including her testimony, medical records, and physicians’ depositions, even though she did not file a pre-trial statement.

Because Parrish presented evidence in support of the conclusion that Van-Tel did not reasonably deny or controvert his claim, we find no abuse of discretion in the trial court’s decision to rule on the issue of penalties and attorney’s fees.

Van-Tel next asserts that the WCJ erred in making an award of penalties and attorney’s fees because it reasonably controverted the claim. “Penalties and attorney fees shall be awarded if the employer or the insurer fails to timely pay benefits due claimant, unless the claim is reasonably controverted or such nonpayment results Ififrom conditions over which the employer or insurer had no control.” Russell v. Snelling Pers., 02-1347, p. 6 (La.App. 1 Cir. 5/9/03), 849 So.2d 588, 591. The WCJ explained his feelings about the actions of the Defendant as follows:

The response of the employer to this entire matter is interesting and in some ways inexplicable. After the company took a statement from Mr. Parrish’s coworker, there seemed to be [a] decided leap in favor of the assumption that Mr. Parrish was exaggerating. This assumption was further supported in the defendant’s mind by comments from Mr. Parrish’s landlord, an individual who clearly had an axe to grind with the claimant involving matters totally unrelated to the on-the-job incident....
It is very difficult to dismiss the claimant’s contention that what passed for an investigation into his accident was little more than the gathering of information to prepare a defense against a workers’ compensation claim. The latter is certainly a legitimate endeavor, but not when it completely overshadows the employer’s obligation to determine precisely what happened when one of its employees reports an injury.
The claim was decidedly not controverted.

“Since the determination of whether an employer was arbitrary and capricious is essentially a question of fact, it is subject to the manifest error or clearly wrong standard of review.” Doyal, 950 So.2d at 909.

Van-Tel further asserts that an award of penalties and attorney’s fees was not appropriate because, although they were the only defendant named, only the insurer, because it denied the claim without reference to the employer, was at fault as required by La.R.S. 23:1201(F).

Louisiana Revised Statutes 23:1201(F)(1) provides as follows:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty....
|7(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.

In this case, the evidence shows that actions of both the employer and the insurer were arbitrary and capricious. Further, the employer has continued to controvert the claim even in the absence of reasonable grounds to do so. Thus, the trial court was within its authority to assess penalties and attorney fees against the employer.

CONCLUSION

For these reasons, the judgment of the WCJ is affirmed, and costs of this appeal are assessed to the Defendant, Van-Tel Communications.

AFFIRMED.


author: PAINTER, Judge.

text:
    Ruben V. ARAGON v. Frederick W. CHAPMAN, III.
    No. 07-414.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 2007.

      D. Patrick Keating, Attorney at Law, Opelousas, LA, for Frederick W. Chapman, III.
    Camille Bienvenu Poché, Attorney at Law, Lafayette, LA, for Ruben V. Aragon.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| ¶ Defendant, Frederick D. Chapman, III, appeals the trial court’s decision to grant the Motion for Summary Judgment on behalf of Plaintiff, Ruben V. Aragon, in this suit on a note given by Chapman in settlement of a claim by Aragon.

FACTS

In August 1997, Aragon advanced $213,000.00 to the Turner Group. Chapman issued a personal guarantee of repayment of those funds. Aragon allegedly obtained a default judgment in an Oklahoma court against Chapman for the $213,000.00 debt. He then had the judgment made executory and recorded it in Louisiana in 1998. In September 1998, Chapman filed for protection under Chapter 7 of the U.S. Bankruptcy Code. Aragon filed a complaint in the Bankruptcy Court to determine whether the $213,000.00 debt was dischargeable. On May 25, 1999, the parties entered a consent judgment whereby Chapman agreed to execute a $25,000.00 note in favor of Aragon in exchange for conclusion of all claims the parties had against one another on that date. The note provided for in the consent judgment was executed, and on April 7, 2005, Aragon filed this suit to collect the amount due under the note. In his answer to the suit, Chapman alleged that Aragon had forgiven the debt owed by the Turner Group in exchange for certain oil and gas properties owned by the Turner Group, thereby satisfying the obligation underlying the note and rendering the note without consideration.

Aragon filed a motion for summary judgment asserting that no issue of fact remained, but that Chapman was indebted to him under the terms of the note, and that payment was due thereunder. Chapman apparently filed an opposition to the motion; however, that opposition has not been made part of the record.

| tAfter a hearing, the trial court rendered judgment in favor of Aragon finding that the consideration for the note was the consent judgment entered by the parties. We affirm.

DISCUSSION

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2).
.... A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp. Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751; Penalber v. Blount, 550 So.2d 577, 583 (La.1989). Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Id.

Hardy v. Bowie, 98-2821, pp. 4-6 (La.9/8/99), 744 So.2d 606, 609-10.

We will review the trial court’s decision granting Aragon’s motion for summary judgment using a de novo standard of review. Id.

Chapman asserts that the trial court erred in granting summary judgment because questions of fact remain as to whether the personal guarantee was extinguished and, as a result, as to whether or not there was consideration for the promissory note.

However, Chapman overlooks the fact that any claims regarding the personal guarantee were ended by the May 25,1999 compromise of the claim as to the dis-chargeability of the judgment for the amount of the guarantee.

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end • to a lawsuit, adjust |3their differences by mutual consent, in the manner which - they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.

La.Civ.Code art. 3071.

Further, La.Civ.Code art. 3078 provides that: “[tjransactions have, between the interested parties, a force equal to the authority of things adjudged.” In other words, a transaction or compromise has the force of a final enforceable judgment. The compromise, by its own terms, discharges “all claims, causes of action or other demands that Aragon may have against Debtor, or that Debtor may have against Aragon,” as of the date it was entered. It was approved, as required by law, by the U.S. Bankruptcy Judge. While questions of fact may remain as to whether the debt underlying the guarantee was forgiven and as to whether the judgment obtained by Aragon was dischargea-ble, these questions of fact are not material to the matter before us.

In exchange for the dismissal of the claims, valid or otherwise, which Aragon had against him, Chapman executed a promissory note in favor of Aragon. An obligation, such as a promissory note, “cannot exist without a lawful cause.” La. Civ.Code art.1966. Cause, according to La.Civ.Code art.1967, “is the reason why a party obligates himself.” In this case, the compromise, which ended the dispute over the dischargeability of the judgment against Chapman, with its inherent risk of loss, as well as the certainty of additional legal fees entailed in disputing the claim, supplied a more than sufficient cause for Chapman’s execution of the note.

Therefore, we find no error in the trial court’s conclusion that no issue of fact remains as to the existence of a cause or consideration for the promissory note sued upon.

|4CONCLUSION

For these reasons, the trial court’s decision to grant Aragon’s motion for summary judgment is affirmed. Costs of this appeal are assessed to the Defendant-Appellant, Frederick W. Chapman, III.

AFFIRMED.


author: PICKETT, Judge.

text:
    Gernine MAILHES v. DISTRICT ATTORNEY, Parish of Calcasieu.
    No. 07-265.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 2007.

      Christopher M. Trahan, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Defendant/Appellant, District Attorney, Parish of Calcasieu.
    Mark M. Zimmerman, Attorney at Law, Lake Charles, LA, for Claimant/Appellee, Gerine Mailhes.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

_]jThe defendant-employer, the District Attorney, Parish of Calcasieu (the DA), appeals a decision by an Office of Workers’ Compensation Judge (WCJ) finding that the claimant, Gemine M. Mailhes, suffered a work-related accident on October 22, 2002, which aggravated her pre-existing condition and resulted in her becoming disabled from working after July 2, 2003. The claimant answered the appeal seeking an increase in attorney’s fees for work necessitated by this appeal. We affirm the decision of the WCJ and award the claimant an additional $2,500.00 in attorney’s fees.

FACTS

The claimant, Gemine M. Mailhes, was an assistant district attorney in the Calca-sieu Parish District Attorney’s (DA) Office. Upon returning from court on October 22, 2002, she went into the women’s bathroom and allegedly slipped and fell on the wet floor (it appears that she did not completely hit the floor). At the time, Ms. Mailhes had been employed by the DA for sixteen years.

Her prior medical history showed extensive back and neck problems. She had been involved in two automobile accidents, one in the 1980’s and one in the 1990’s and, as a consequence of these accidents, she had undergone a number of surgical procedures including laminectomies, discecto-mies, and fusions. As of October 2002, the claimant had undergone laminectomies at L-3/4 and L-4/5 with an unspecified repair at S-l, and, after the failure of lesser treatment, had undergone fusions at C-4/5, C-5/6, and C-6/7. At the time of her work-related accident, she was still under medical care, was limited in her physical activities, and was experiencing pain which adversely effected her daily life. The WCJ found that the claimant was able to work 12at the time of her accident, but that following the accident her condition worsened, and, by July 2003, she was no longer able to work.

On appeal, the DA’s Office assigns only one error, asserting that the WCJ erred in that “her decision is clearly wrong, in finding the evidence adduced at trial preponderates to prove an aggravation which may have occurred following the October 22, 2002 incident made Ms. Mailhes’ pre-exist-ing condition disabling after July 3, 2003.”

LAW AND DISCUSSION

The law applicable to this case was discussed by this court in Sharbono v. Fire Safety Sales and Serv., 04-265, pp. 6-7 (La.App. 3 Cir. 9/29/04), 883 So.2d 1066, 1070 (emphasis ours), writ denied, 04-2661 (La.1/28/05), 893 So.2d 73:

An appellate court may not set aside the WCJ’s factual findings unless they are manifestly erroneous or clearly wrong. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706; Rosell v. ESCO, 549 So.2d 840 (La.1989). Even though an appellate court may believe that its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility should not be disturbed on review where there is conflict in the testimony. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733.
In Baker v. Conagra Broiler Co., 93-1230, pp. 8-9 (La.App. 3 Cir. 5/4/94), 640 So.2d 494, 498, writ denied, 94-1435 (La.9/23/94), 642 So.2d 1289 (citations omitted), we summarized the jurisprudence pertaining to a worker with a preexisting condition as follows:
In compensation cases, the claimant has the burden of showing that more probably than not an employment accident occurred and that it had a causal relation to the disability suffered. A worker’s preexisting condition does not bar his or her recovery under the workers’ compensation laws because an employer takes the worker as he finds him or her. An abnormally susceptible worker is entitled to no less protection under the workers’ compensation statute than a healthy worker. It is immaterial that the diseased or weakened condition of the worker might eventually produce the disability suffered |noutside of the employment situation. Said another way, the worker’s claim for disability benefits will not be disqualified if the work-related injury aggravates, accelerates, or combines with a disease or infirmity to produce death or disability for which compensation is claimed.

See also, Cotton v. First Fleet, 07-41 (La.App. 3 Cir. 5/2/07), 957 So.2d 239. Furthermore, the “developing injury” rule makes it clear that if an employee sustains an on the job accident in which an injury is immediately apparent, but still continues to work until he/she is finally disabled from doing so, the employee will not be penalized.

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.

White v. Phoenix Pharmacy, 03-1624, p. 5 (La.App. 3 Cir. 4/7/04), 870 So.2d 592, 596, ■writ denied, 04-1150 (La.7/2/04), 877 So.2d 147, quoting Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859, p. 5 (La.4/10/95), 652 So.2d 1323, 1326.

The defendant’s argument relies almost exclusively on the claimant’s prior injuries and her medical records which document her treatment and condition prior to her October 2002 accident. There is no doubt that prior to October 2002 the claimant was working in pain and under restrictions as to lifting, bending, prolonged sitting, etc. However, even with her restrictions and her pain, she was able to continue her employment.

Dr. Frank W. Lopez had become the claimant’s treating physician in 2000. He was well aware of all of her medical problems and, as early as 2001, had recommended that she either find other employment or consider retiring. He stated that her problems basically remained the same, but that “they became exacerbated |4over time.” In his deposition, Dr. Lopez testified as follows:

In the time I knew Gemine before this [the October 2002 accident] happened, as I said, I had made recommendations that she change jobs, that she ease off the situations that were causing her to have pain. And even though she accepted] what I said, she didn’t — I didn’t think she made a great effort to change what she was doing because I think she was enjoying her job. Stress or whatever it was, she wanted to stay there. So, my impression would have been that had she been able to continue, she would have either continued in the same job or something else that she could have managed to do.
And my interpretation of the whole thing is that a person which has the conditions that Gemine presented in that initial year I knew her, I would have expected that she was going to deteriorate and have some kind of problems. I think this accident [of October 2002] accelerates everything to the point of her having to change all of her working activities and end up not — not working.
I think that in my understanding of her condition, I think that [the accident] both accelerated and aggravated the pain problems with certainty in the neck and with great probability in the back, too.

Dr. Lopez stated that after the October 2002 accident he had to change the claimant’s medication from a weaker, codeine preparation to a stronger, morphine preparation.

In sum, we find that the testimony of Dr. Lopez supports the finding by the WCJ that the claimant’s accident of October 22, 2002, aggravated, accelerated, or combined with her pre-existing infirmity to produce her disability.

Accordingly, for the reasons stated, the judgment of the WCJ is affirmed. The claimant is awarded an additional $2,500.00 in attorney’s fees for work necessitated by this appeal.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    Sharon BOXIE v. Dwight R. LEMOINE, M.D., et al.
    No. 07-905.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 2007.

      James R. Shelton, Durio, McGoffin & Stagg, Lafayette, LA, for Defendants/Appellants, Dwight R. Lemoine, M.D. and St. Paul Fire and Marine Insurance Company and for Intervenor/Appellant, Louisiana Patient’s Compensation Fund.
    Milo Addison Nickel, Jr., Rayne, LA, Nadia Marie de la Houssaye, Perret Doise, Lafayette, LA, for Intervenor/Appellant, Louisiana Patient’s Compensation Fund.
    Phylliss Hennessee, Nelson & Ham-mons, A Professional Law Corporation, Shreveport, LA, For Plaintiff/Appellee, Sharon Boxie.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

I,The Plaintiff-Appellee, Sharon Boxie, moves to dismiss this appeal only as it relates to Intervenor/Appellant, the Louisiana Patient’s Compensation Fund (PCF). For the following reasons, we deny the motion. This case involves a medical malpractice claim arising out of a surgical procedure which allegedly left Appellee a quadraplegic. Appellee filed suit alleging that Dr. Dwight Lemoine was negligent in supervising the administration of anesthesia during her surgery.

A jury trial was held from November 13, 2006 to November 17, 2006, and the jury found that Dr. Lemoine did not breach the standard of care. Judgment was signed on November 30, 2006. Appellee filed a Motion for Judgment Notwithstanding the Verdict which was heard on January 22, 2007, and granted on February 21, 2007. Judgment was entered in the amount of $5,000,000.00, and sixty percent fault was assessed to Dr. Lemoine.

On March 12, 2007, defense counsel filed a motion for suspensive appeal on behalf of Dr. Dwight Lemoine, St. Paul Fire and Marine Insurance Company, and the PCF. The order granting the suspensive appeal was signed on March 21, 2007; however, Appellants failed to timely post sufficient security. At a hearing on July 6, 2007, the trial court recalled and dismissed the sus-pensive appeal and granted a devolutive appeal. Judgment was signed on July 16, 2007. Meanwhile, the PCF filed a Petition to Intervene on March 30, 2007, and the order granting leave to intervene was signed on March 28, 2007.

The appeal was lodged in this court on July 25, 2007. On August 24, 2007, Appellee filed a motion to dismiss the appeal as it relates to the PCF. In support of the motion to dismiss, Appellee argues that the suspensive appeal granted to the PCF by judgment dated March 21, 2007, should be dismissed because the PCF failed to | ¿intervene before the motion for suspensive appeal was filed on March 12, 2007. Appellee contends that because the PCF did not timely file an intervention in the instant matter, the PCF did not become a party to the appeal filed on behalf of Dr. Lemoine and his insurer. Further, Appellee contends that after intervening in the lawsuit, the PCF failed to perfect its own appeal within the delays for filing a devolutive or suspensive appeal.

In opposition to the motion to dismiss, the PCF contends that its motion for sus-pensive appeal was timely filed and that Appellee failed to raise any objections regarding the PCF’s standing to file such an appeal at the trial court level. Also, the PCF argues that since it is recognized as a statutory intervenor, neither the case law nor the Louisiana Medical Malpractice Act requires it to file a petition to intervene in order to preserve its right to appeal.

Under the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq., the PCF is responsible for judgments against health care providers that exceed one hundred thousand dollars. As such, the Louisiana Supreme Court has stated:

While the Patient’s Compensation Fund is not a party defendant, it is a third party with an interest in the proceeding when damages exceed $100,000.00. Therefore, the Fund has the right to intervene in the case of an excess judgment against the Fund. Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676 (La.1985).

Koslowski v. Sanchez, 576 So.2d 470, 474 (La.1991). “Just as an intervenor may do, the Fund may put on evidence and unite with the defendant in resisting the claimant’s demand.” Bennett v. Krupkin, 01-209, p. 8, n. 8 (La.10/16/01), 798 So.2d 940, 945. See La.Code Civ.P. art. 1091.

Accordingly, we find that the PCF and the health care provider are permitted to file a joint motion for appeal. We disagree with Appellee’s argument that the PCF needed to file an intervention as a prerequisite to being included in the motion for suspensive appeal filed on March 12, 2007. Because the judgment against | sDr. Lem-oine exceeded one hundred thousand dollars, the PCF became an interested party in this case. See Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676 (La.1985). As an interested party, the PCF had a right to appeal, regardless of whether it filed a petition of intervention. Therefore, we find that the motion for suspensive appeal filed on behalf of the PCF was not premature, even though it was filed before the PCF filed its petition of intervention.

Furthermore, we find that the trial court’s dismissal of the suspensive appeal as it relates to the PCF was erroneous. The trial court recalled and dismissed the suspensive appeal for failure to timely post sufficient bond. However, the PCF is not required to post bond when taking a sus-pensive appeal. See La.R.S. 13:4581. Therefore, the failure to post a timely-filed bond cannot be the basis for dismissing the suspensive appeal of the PCF.

Accordingly, we find that the PCF is properly before this court as an interve-nor/appellant for purposes of a suspensive appeal. Therefore, Appellee’s motion to dismiss the appeal as it relates to the PCF is denied.

MOTION TO DISMISS APPEAL DENIED.