text:
    Jerry WILLIAMSON v. DRESSER, INC., et al.
    No. 2007-CC-2369.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Williamson, Jerry; — Plaintiff; Applying for Supervisory and/or Remedial Writs Office of Workers Comp. Dist. 02, No. 0-03654; to the Court of Appeal, Third Circuit, No. WCW 07-01093.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Grace WONG v. Mitchell J. HOFFMAN, Hillary Hurst Landry, and Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P.
    No. 2007-C-2373.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Landry, Hillary Hurst; Miller North America; Hoffman, Mitchell J.; Lowe, Stein, Hoffman, Allweiss, & Hauver L.L.P.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 03-1728; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1483.

Denied.


text:
    DAIMLERCHRYSLER FINANCIAL SERVICES OF NORTH AMERICA, L.L.C. as Successor to Chrysler Financial Company, L.L.C. v. SECRETARY, DEPARTMENT OF REVENUE.
    No. 2007-C-2374.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re DaimlerChrysler Financial Services Americas L.L.C.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 510,992, 510,-993; to the Court of Appeal, First Circuit, No(s). 2007 CA 0010, 2007 CA 0011.

Denied.

JOHNSON, J., would grant.


text:
    Thorlanis JAMES v. LEDAR TRANSPORT, AIG Insurance Companies and XYZ Insurance Carriers.
    No. 2007-C-2375.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re James, Thorlanis; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. E, No. 03-001247; to the Court of Appeal, First Circuit, No. 2007 CA 0240.

Denied.


text:
    STATE of Louisiana v. Donald M. SCHAEFFER.
    No. 2008-KK-0045.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Schaeffer, Donald M.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 413,992; to the Court of Appeal, First Circuit, No. 2007 KW 1925.

Denied.


text:
    K.P.W. v. M.P., et al.
    No. 2008-CJ-0122.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re K.P.W.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. G, No. 108,644-G; to the Court of Appeal, Third Circuit, No. 07-904.

Denied.


text:
    STATE of Louisiana v. Gary TIRCUIT.
    No. 2008-KH-0132.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
   In re Tircuit, Gary; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 468-679; to the Court of Appeal, Fourth Circuit, No. 2007-K-0663.

Writ Denied. However, the district court should take the necessary steps to insure relator is brought into court for the hearing on pre-trial motions scheduled for February 11, 2008, and to set a date for trial at the conclusion of the hearing.


author: CLARENCE E. McMANUS, Judge.

text:
    Karen K. GILLEY v. John H. GILLEY, Jr.
    No. 07-CA-568.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2007.
    Roland A. Ditta, Attorney at Law, Gret-na, LA, for Plaintiff/Appellant.
    Robert C. Lowe, Jeffrey M. Hoffman, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| .¿This appeal arises out of a divorce proceeding. Plaintiff, Karen Gilley, filed a petition for divorce, on April 15, 2005. On June 17, 2006 she was granted interim spousal support. The parties were divorced by judgment rendered on February 16, 2006.

On August 14, 2006, Mrs. Gilley filed a Rule to Extend Interim Spousal Support, or in the alternative, Final Periodic Support. In his Pre-Trial Memorandum, Mr. Gilley alleged that Mrs. Gilley was not free from fault in the breakup of the marriage, and that she had “over a lengthy period of time during the marriage of the parties, exhibited cruel intentional behavior, habitual intemperance, continuously accusing [him] of adultery, refusing to have sex, and any other facts to be proven at trial all of which rendered living together insupportable.” On November 13, 2006, the trial court rendered judgment denying Mrs. Gilley final periodic support. Mrs. Gilley now appeals the decision of the trial court.

LSA-C.C. art. Ill allows the court to award final periodic support to a party free from fault in the dissolution of the marriage, based on the needs of the party and the ability of the other party to pay. The burden is on the claimant spouse to “affirmatively prove” freedom from fault. Wolff v. Wolff 07-332 (La.App. 3 Cir. 10/3/07), 966 So.2d 1202, 1205.

We have defined “fault” sufficient to bar final periodic support as follows:

|„In Simon v. Simon, 96-876 (La.App. 5 Cir. 5/14/97), 696 So.2d 68, this Court found that “legal fault”, which will preclude support, consists of serious misconduct, which is a cause of the marriage’s dissolution. This Court further found that all spouses have faults, and spouses seeking support need not be perfect to be free from legal fault. Petty quarrels between husband and wife do not rise to the level of “legal fault” but, rather, to be legally at fault, spouse must be guilty of cruel treatment or excessiveness which compel separation because marriage is insupportable. “Fault” which will preclude support contemplates conduct or substantial acts of commission or omission by spouse viola-tive of his or her marital duties or responsibilities.

Evans v. Evans, 04-215 (La.App. 5 Cir. 7/27/04), 880 So.2d 87, 89, writ denied 04-2191 (La.11/19/04), 888 So.2d 200; Desai v. Desai 01-1325 (La.App. 5 Cir. 4/10/02), 817 So.2d 230, 231. To prove cruel treatment a party needs to show a continued pattern of mental harassment, nagging, and griping by one spouse directed at the other so as to make the marriage insupportable as mere bickering and fussing do not constitute cruel treatment for purposes of denying alimony. Walker v. Walker, 41,573 (La.App. 2 Cir. 11/1/06), 942 So.2d 605, 608.

The trial court is vested with vast discretion in determination of fault for the purposes of determining final support because this issue turns largely on evaluations of witness credibility, and its finding of fault will not be disturbed in the absence of manifest error. Moore v. Moore, 03-1217 (La.App. 5 Cir. 1/27/04), 866 So.2d 910, 914; Jones v. Jones, 35,502 (La.App. 2 Cir. 12/5/01), 804 So.2d 161, 164. Even though an appellate court may feel its own evaluations are more reasonable than the factfinder’s, reasonable evaluations of credibility should not be disturbed where conflict exists in testimony. Jones v. Jones, supra, at page 164.

At trial, it was established that Mr. Gil-ley had a camp in Venice, where he spent considerable time. He further testified that he was an avid hunter and fisherman, and that Mrs. Gilley knew this before she married him. Mr. Gilley stated that he wanted Mrs. Gilley to go to the camp with him, and that she had an |4open invitation to go, if that were needed. Mrs. Gilley and her sister testified that Mrs. Gilley stopped going to the camp because Mr. Gilley did not want her there.

To meet her burden of proof, Mrs. Gilley presented the testimony of her sister and herself. She testified that she filed for divorce when she discovered Mr. Gilley was having an affair. She denied the allegations of cruel behavior and intemperance, and stated that she did not continuously accuse him of adultery. She stated that she did not deny sex and that she asked to go to the camp with him, but he always had an excuse to leave her behind. She further stated that she “gave up the happiness of me having him home with me” and that she acted basically as a single parent so he could go to the camp and do the things he loved. He gave her remodeling projects to coordinate, and he always was satisfied with the results.

Ms. Gilley’s sister, Dawnell McClendon, testified that Ms. Gilley waited on Mr. Gilley “hand and foot.” He created remodeling and other projects in the house that she would handle so he could go to the camp. Ms. McClendon never saw her sister habitually drink, and she further testified that Mr. Gilley told her that Mrs. Gilley never refused sex.

Mr. Gilley presented his testimony, as well as the testimony of his mother, his alleged paramour, and two friends. Mr. Gilley testified that during the course of the marriage, Mrs. Gilley would accuse him of having affairs with different women. She would check up on him by showing up where he was and asking questions, sometimes humiliating him. She would question his friends, call him countless times while he was at work and at the camp, and that this behavior deteriorated to where it became a daily behavior. Gilley testified to several specific instances, as did his friends, John Jorgensen and Edward Hayes. Gilley stated that Mrs. Gilley did not drink every day, but when she did drink she would drink to excess and she would become mean and pick fights. He further stated that |Bin recent years, she had locked him out of the marital bedroom, and that she would go play bingo and go to the casinos, returning home late at night. He admitted to doing drugs with her, and said that he stopped using the drugs at home when their child became old enough to realize. He stated they stopped living together when she asked him to leave. Finally he testified that he asked her not to file for the divorce because at that time he still wanted to try to work things out.

Ms. Brown, the alleged paramour, testified that she met Mr. Gilley when she went with her friend Mary, who had been hired to clean his camp. She had never been to the camp without Mary. She denied having an affair with Mr. Gilley.

In its judgment the court said

After pleadings, evidence, and argument of counsel, the court finds that both parties committed numerous and consistent acts which constituted cruel treatment and behavior, defamatory acts, and habitual intemperance, which constitute fault of such a nature and extent to render their marriage and living together insupportable. Although perhaps, not equal, the fault of each of them was sufficiently serious to constitute a proximate cause of the breakup of the marriage.

The court also stated in its judgment that it did not find that adultery was proven on the part of either spouse.

Thus it appears that the trial court found more credible the testimony of Mr. Gilley and his witnesses. In our review, we cannot say that the trial court abused its vast discretion or committed manifest error in its finding that Mrs. Gilley was not free from fault in the break up of the marriage. Accordingly, we find that the trial court did not err in denying Mrs. Gilley’s claim for permanent periodic support.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against appellant.

AFFIRMED.

      . On November 6, 2006 her rule for extension of interim spousal support was denied.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana In the Interest of A.C. and K.D.
    No. 07-CA-826.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2008.
    Sherry A. Watters, Attorney at Law, Department of Social Services, New Orleans, LA, for Plaintiff/Appellant.
    M. Elizabeth Toca, Attorney at Law, Gretna, LA, for Minor/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

li/The State of Louisiana, through the Department of Social Services, Office of Community Services (“OCS”), appeals a ruling of the Juvenile Court for the Parish of Jefferson. The current appeal relates only to a ruling involving the minor K.D. Because that ruling is not an appealable judgment, we dismiss the appeal.

K.D. came into the custody of the OCS in March 2000 when the department petitioned to terminate her parents’ parental rights. The termination was granted, and she was placed in foster care. Prior to June 2006, the OCS case plan was to find an adoptive home for K.D. More than one placement was made for adoption, but, on December 12, 2006, the court held a periodic case review hearing and determined that the latest attempt at adoption placement had failed. K.D. would be continued in alternative safe and permanent home (formerly “long term foster care”) at Hope Haven. At that time, the court issued a disposition, approving the plan of OCS to maintain K.D. in the home where she then resided. In that same judgment, the court issued several other orders, including ordering “OCS to | ¡¡provide the minor with braces, using the Katria [sic] fund money if necessary.” No appeal was taken from the disposition. A subsequent judgment, dated May 8, 2007, was another periodic case review which continued the status quo and did not address the orthodontia issue.

On June 20, 2007, OCS moved for modification of the judgment ordering orthodontic services, incorrectly referencing the May 8, 2007 judgment. OCS urged it no longer had the available resources to provide the services. A hearing was held on July 23, 2007, at which time the court denied the motion for modification; the record indicates that OCS did not appear at that hearing. Subsequently, OCS filed for rehearing, urging it had not been notified of the date set for the motion. On August 14, 2007, the matter was taken up on rehearing, and, following testimony, the court once more ordered OCS to pay for orthodontia services. This judgment in substance again denied modification of the December 2006 disposition.

We do not address the arguments of OCS because we have determined that this Court does not have appellate jurisdiction to review the matter.

LSA-Ch.C. art. 330 provides:

A. An appeal may be taken from any final judgment of a court and shall be to the appropriate court of appeal.
B. In delinquency proceedings pursuant to Title VIII, child in need of care proceedings pursuant to Title VI, and families in need of services proceedings pursuant to Title VII, an appeal may be taken only after a judgment of disposition. The appeal shall include all errors assigned concerning the adjudication and disposition.

(Emphasis provided.)

Pursuant to this article, an appeal may be taken only after a judgment of disposition. The judgments denying the motion to modify and denying rehearing are |4not judgments of disposition. If considered as an appeal from the disposition ordering the orthodontia, it would be untimely under LSA-Ch.C. art. 332. Accordingly, the appeal must be dismissed. However, we can review the judgment under our supervisory jurisdiction. Therefore, we grant OCS thirty days from the date of this opinion within which to file an application for supervisory writs.

APPEAL DISMISSED.

      . See, State in the Interest of C.J., 2006-1441 (La.App. 1 Cir. 2/14/07), 959 So.2d 972, writ denied 2007-0579 (La.4/5/07), 954 So.2d 147.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Jeardine DANIELS v. DEPARTMENT OF POLICE.
    No. 2007-CA-1165.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.
    Frank G. Desalvo, Desalvo Desalvo & Blackburn, APLC, New Orleans, LA, for Plaintiff/Appellee.
    Penya Moses-Fields, City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Heather M. Valliant, Assistant City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge LEON A. CANNIZZARO JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

I,The Department of Police for the City of New Orleans (hereinafter “Police Department”) seeks review of the decision of the Civil Service Commission (hereinafter “Commission”) ordering the reinstatement of Officer Jeardine Daniels with all back pay and emoluments of office. For the reasons which follow, we vacate the judgment and remand to the Commission.

Officer Daniels attained the level of Police Officer IV with permanent status by the time Hurricane Katrina struck the City of New Orleans. The Police Department charged her with failing to report for duty on or about August 28, 2005. Testimony revealed that she was on limited duty prior to Hurricane Katrina due to an injury to her knee. Thereafter, the Department dropped Daniels from the rolls of the New Orleans Police Department effective October 29, 2005 without holding a pre-termination hearing.

Officer Daniels appealed to the Commission. The Commission ruled in her favor, based on a finding that the Police Department failed to grant her a pre-termination hearing, including notice and an opportunity to be heard, prior to the imposition of discipline. The Commission ordered the Police Department to reinstate Officer Daniels with back pay and all emoluments of office as of October |⅞29, 2005. The Commission limited the back pay and emoluments to the period occurring after February 6, 2006. The Commission held open the issue of back pay and emoluments of office for the period between August 30, 2005 and February 6, 2006, as Officer Daniels was undergoing medical treatment during that period and was unavailable for duty.

In Reed v. Dept. of Police, 2006-1498, p. 1 (La.App. 4 Cir. 10/10/07), 967 So.2d 606, this Court ruled en banc that Hurricane Katrina, with its effects upon the City of New Orleans and its government, was an extraordinary event such that the Police Department could discipline its officers without a pre-termination hearing. This Court further held that under the unique circumstances presented, a post-termination hearing which allows the accused officer an opportunity to present all relevant evidence which would have been introduced at a pre-termination hearing satisfies the due process requirements of both the United States and Louisiana Constitutions. This Court vacated the decision of the Commission and ordered the Commission to receive from the parties such additional evidence as necessary to appropriately resolve the matter on the merits. Id. at p. 6.

Therefore, as we did in Reed, we remand this case to the Civil Service Commission for them to receive from the parties such additional evidence as necessary to appropriately resolve the case and to render a judgment on the merits. In that regard, the Civil Service Commission is specifically instructed to permit each of the parties to introduce at the post-termination hearing such additional evidence as they might have provided to the appointing authority at a pre-termination hearing if same had been afforded.

|sThe right of each party to appeal a new subsequent judgment of the Civil Service Commission following its ruling on the merits of each case is preserved.

JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS.


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

text:
    William MCLEAN and Jeanne Dumestre v. DAVIE SHORING, INC.
    No. 2007-CA-0162.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2008.

      William E. Wright, Jr., Charlotte C. Meade, Deutsch, Kerrigan & Stiles, L.L.P. New Orleans, LA, for Plaintiffs/Appellants, William McLean and Jeanne Dumestre.
    Kyle Schonekas, Andrea V. Timpa, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for Appellee, Gregory C. Rigamer and Associates.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

I,The plaintiffs, William McLean and Jeanne Dumestre (“the McLeans”), appeal a trial court judgment dismissing their lawsuit with prejudice against the defendant, Gregory C. Rigamer & Associates, Inc. (“GCR”), on a peremptory exception of no right of action. We reverse the trial court judgment and remand the matter for further proceedings.

PACTS AND PROCEDURAL HISTORY

The McLeans owned and resided in a house at 4300 South Prieur Street in New Orleans, Louisiana. The property was located in an area designated for flood protection assistance through the Federal Emergency Management Agency (“FEMA”) Unmet Needs Program; thus, the McLeans were eligible to apply for federal funds to partially pay for the elevation of their house. The City of New Orleans (“the City”), as the administrator of the FEMA program, entered into a contract with GCR, authorizing it to serve as the City’s agent and administrator of the program. Pursuant to the contract, GCR was obligated to interview and recommend only insured and bonded elevation contractors to the participating 12property owners; insure that the required City permits were obtained prior to commencement of any elevation work; insure that the elevation contractor had used a licensed professional engineer to provide structural drawings for the new foundation system; insure that the elevation contractor documented the pre-construction condition of the house; insure that the elevation contractor disconnected and secured all utility services to the house; and submit monthly reports to the City tracking the progress of the construction work.

In connection with the McLeans’ participation in the FEMA program, GCR retained Eustis Engineering Company, Inc. (“Eustis”) to survey the property and recommend the appropriate foundation to be constructed in connection with the elevation of the house.

In July 2002, the McLeans entered into an elevation contract with Davie Shoring, Inc. (“Davie”), an elevation contractor selected by GCR. Pursuant to the contract, Davie was required to obtain the payment and performance bonds to insure completion of the work, to provide copies of the bonds to GCR prior to beginning the work, to obtain the necessary building permits and to pay the permit fees. Davie was also responsible for the new foundation design, including the preparation of design drawings and specifications by a licensed professional engineer skilled in foundation design. The foundation was to consist of a deep interlocking piling system as recommended by Eustis. The estimated total cost of the contract was $144,500.00, 75% of which was to be paid through the FEMA program. The elevation contract also contained a hold harmless and indemnification clause, which provided:

Owner and Contractor hereby indemnify and hold harmless [GCR] from and against any and all claims, damages, demands, suits, judgments, losses, costs and | pliability, whether at law or in equity, in tort, contract or otherwise, directly or indirectly resulting in whole or in part from the acts or omissions of [GCR], its officers, directors, representatives, agents, servants, employees, or others for whom it may be responsible, in any way growing out of, or relating to, Owner’s participation in the Federal Emergency Management Agency Unmet Needs Program, or any construction or other contract in connection therewith.

In conjunction with the elevation contract, the McLeans also executed a voluntary elevation agreement with GCR, which contained the following provision:

We [the McLeans] understand that any agreement with contractors for elevation and associated services will be between the owners of the structure and the contractor(s) and that the City of New Orleans and its agent, [GCR], will be held harmless from any claims, suits, loss or cost and liability on account of damages to the structure resulting from the negligence of contractors, its employees, agents and subcontractors.

GCR drafted both the elevation contract and the voluntary elevation agreement.

In late July 2002, Davie commenced the elevation work on the McLeans’ house. Instead of providing plans and specifications prepared by a licensed professional engineer, as called for in the contract, Davie provided unstamped drawings without dimensions purportedly signed by a Mr. Michael A. Cenac. Additionally, Da-vie obtained a building permit for a “leveling and shoring” job with an estimated cost of $48,000.00, when, in fact, the job was far more complex and had an estimated cost of $144,500.00. Davie also failed to obtain the payment and performance bonds as required under the contract.

Shortly after the work began, Davie sought to reduce the scope of its work under the original contract. As a result, the McLeans had to enter into two new | contracts. The first was a new elevation contract with Davie, dated December 27, 2002, which excluded certain interior work that was part of the original contract. The new elevation contract had an estimated cost of $118,500.00 and did not require Davie to obtain payment and performance bonds.

The McLeans executed a second contract with Crescent City Construction (“Crescent City”), which was to perform certain construction services in coordination with Davie. Pursuant to the contract, Crescent City would be paid a total of $26,000.00, $19,500.00 from the grant funds and $6,500.00 by the McLeans.

Davie started the work under the new elevation contract in January 2003. Again, Davie neither provided plans and specifications by a licensed professional engineer nor obtained the proper building permits from the City. Nonetheless, Davie raised the house, drove the pilings and constructed a new foundation. Soon after the work was completed in June 2003, the McLeans discovered that the walls of the house were out of plumb and the new foundation was placed twelve to eighteen inches out of line and not over the pilings installed by Davie.

The McLeans later met with Davie and Mr. Thomas M. Smith, an engineer retained by Davie in early 2003, to discuss the deficiencies in the work. The Mc-Leans learned then, for the first time, that Mr. Smith had submitted several drawings in March 2003 that had modified the foundation plan previously submitted by Mr. Cenac. Neither Davie nor GCR had ever informed the McLeans of this fact.

To ascertain the full extent of the problem, the McLeans hired a licensed professional engineer, who determined that the house had shifted twelve to eighteen inches after Davie had raised it, that Davie had constructed a new support |fiwall without taking into account the shift, and that the new foundation was not consistent with Mr. Smith’s engineering design. The Mc-Leans then hired a new contractor who agreed to raise the house, demolish the foundation constructed by Davie, and build a new foundation and support walls. While demolishing the foundation, the contractor discovered that Davie also had failed to drive the requisite number of pilings to the appropriate depths.

Although the McLeans applied to the FEMA program for funding to pay for the remediation of the deficient work and the construction of the new foundation, they were unable to obtain it. The new construction was nearly complete when the McLeans’ neighborhood was flooded as a result of Hurricane Katrina on August 29, 2005. Nonetheless, the contractor completed the work and the McLeans were able to move back into their home in January 2006.

Meanwhile, the McLeans had sued Da-vie in February 2004, alleging breach of contract and negligence in the performance of its obligations under the elevation contract. The McLeans later amended their petition to name GCR as a defendant, alleging that it was negligent in failing to monitor and ensure that Davie completed its obligations under the elevation contract.

GCR filed a peremptory exception of no right of action, arguing that the elevation contract contained an unambiguous hold harmless and indemnification clause whereby the McLeans unequivocally agreed to indemnify and hold GCR harmless from and against any and all claims or damages arising under the contract or for their participation in the FEMA Unmet Needs program, including liability arising from “the acts or omissions” of GCR. In addition, GCR argued, the voluntary elevation agreement released it from any and all claims for damage to the McLeans’ property as a result of the elevation work. In support of its |fiexception, GCR submitted copies of both the signed elevation contract and voluntary elevation agreement.

The McLeans, in opposition to the exception, argued that to the extent the indemnity and hold harmless provisions limited or excluded, in advance, GCR from any and all liability for its own gross negligence or intentional conduct, they were null and void and against public policy pursuant to article 2004 of the Louisiana Civil Code. The McLeans emphasized that GCR, as the project administrator for the City, drafted the elevation contract and the voluntary elevation agreement, and they were required to accept the contracts as written to participate in the FEMA program. Thus, they argued, the contractual provisions should have been strictly construed against GCR.

Following a hearing, the trial court sustained the exception, dismissing the Mc-Leans’ claims against GCR with prejudice. The McLeans appealed.

ASSIGNMENTS OF ERROR

The McLeans raise three assignments of error which, essentially, may be summarized as the trial court erred in sustaining GCR’s peremptory exception of no right of action.

STANDARD OF REVIEW

The determination of whether a plaintiff has a right of action is a question of law. Therefore, this court is required to determine whether the trial court applied the law appropriately. Mendonca v. Tidewater, Inc., 2003-1015, p. 4 (La.App. 4 Cir. 12/17/03), 862 So.2d 505, 508. In Glass v. Alton Ochsner Medical Foundation, 2002-0412 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, this court set forth the scope of appellate review concerning issues of law:

The standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4 Cir.1992). Furthermore, if the decision of the district court is based on an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983).

2002-0412, p. 3, 832 So.2d at 405.

LAW AND DISCUSSION

La. C.C.P. art. 923 states that “[t]he function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 927 lists the objections that may be raised through a peremptory exception, and “[n]o right of action, or no interest in the plaintiff to institute the suit” is one of the objections that is listed. La. C.C.P. art. 927(A)(5).

Pursuant to La. C.C.P. art. 681, an action can be brought only by a person having a real and actual interest in that which he asserts. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. La. C.C.P. art. 927; Reese v. Department of Public Safety and Corrections, 2003-1615, p. 3 (La.2/20/04), 866 So.2d 244, 246. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that |shas a legal interest in the subject matter of the litigation. Id. Further, evidence is admissible on the trial of an exception of no right of action to “support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931.

In reviewing the judgment sustaining the exception of no right of action, we assume the McLeans’ petition states a valid cause of action. Furthermore, it is undisputed that the McLeans are the owners of 4300 South Prieur Street and that they had participated in the FEMA program administered by the City through GCR. Thus, considering these circumstances, we find that the McLeans have a real and actual interest in the matter that has been asserted, belong to the class of persons to whom the law grants the cause of action asserted, and are the proper parties to bring the suit at issue. Because the Mc-Leans clearly have a legal interest in the subject matter of this litigation, we conclude that the trial court erred in sustaining the peremptory exception of no right of action raised by GCR.

Finally, we note that much of the argument in both the trial court and the appeal was directed to the issue of whether GCR’s conduct, as alleged by the Mc-Leans, constituted ordinary or gross negligence or intentional fault. Considering the focus of our review of the exception of no right of action was limited solely to the issue of whether the McLeans were the proper parties, i.e., had standing, to bring the suit against GCR, we pretermitted any discussion regarding GCR’s conduct and/or the actual merit of the McLeans’ claims as it was not germane to that issue.

|gDECREE

Accordingly, for the above reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . The record indicates the plaintiffs were married. Therefore, for ease of reference, we will refer to them as the McLeans.

      . The McLeans allege that Davie misrepresented the scope of the elevation contract in order to avoid the more stringent requirements for projects with costs greater than $50,000.00 and to limit the amount of permit fees.

      . La. C.C.P. art. 2004 provides, in pertinent part, that "[a]ny clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other.”


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Dr. Charles ELLIOTT v. Cliff NORMAND and General Service & Supply, Inc.
    No. 07-CA-569.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      David M. Hufft, Attorney at Law, Belle Chasse, Louisiana, for Plaintiff/Appellee.
    David H. Alfortish, Attorney at Law, Kenner, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡¿This is a breach of contract case. Plaintiff Dr. Charles Elliott entered into two agreements with defendant Cliff Normand whereby Cliff Normand agreed to repair Dr. Elliott’s 27' Mercruiser Sea Ray boat and Dr. Elliott’s 1988 Volvo automobile. After a bench trial, the trial judge granted judgment in favor of Dr. Elliott and against defendants Cliff Normand, and Cliff Normand’s business, General Service and Supply Inc. Cliff Normand and General Service and Supply Inc. (Normand) appealed. They do not dispute liability. Rather they seek a decrease in damages. In addition, they seek to vacate the portion of the judgment that grants interest from the date of judicial demand. Dr. Elliott has answered the appeal seeking an increase in damages. For the reasons set forth below, we vacate in part, amend in part, and affirm as amended.

Facts

In September 1998, Dr. Elliott purchased a 27' Mercury twin-engine Sea Ray boat. Normand, who is a mechanic, assisted Dr. Elliott by negotiating a favorable price. Normand gave the seller an inflated estimate to get it running — $17,159.65. By doing so, Dr. Elliott was able to purchase the boat for only $5,000. The boat had been out of water for a least a year. Dr. Elliott did not know if the |sboat ran at all. After inspecting the boat, Normand determined that the two engines needed to be rebuilt.

Normand and Dr. Elliott entered into a repair contract whereby Normand agreed to rebuild the boat engines at a price of $25 per hour for labor plus costs for the parts. Dr. Elliott paid Normand $6,353.67 of Normand’s $6,985.47 charge.

Normand testified he disassembled the engines, sent them to a mechanic’s shop to be bored, put in new pistons, replaced the fuel pump, and installed an oil pump.

In December 1998 or January 1999, Normand and Dr. Elliott entered into another agreement whereby Normand agreed to repair Dr. Elliott’s Volvo, which was overheating. They agreed Normand would be paid in accordance with the pay agreement for the boat. Normand stopped working on the engines in January 1999 and began working on the Volvo. It was not until May 1999 that Normand resumed work on the engines.

Normand disassembled the Volvo engine, rebored it, put in new pistons, and flushed the engine. Then when Normand completed the work, Dr. Elliott returned to complain about oil in the water reservoir. Normand spotted the oil but felt it was an insignificant amount of oil. He told Dr. Elliott that it took time to flush oil out of the water system. He agreed to flush it again but Dr. Elliott never again contacted Normand. Dr. Elliott paid Normand $6,821.33 for the Volvo repairs.

Normand testified that he probably completed putting the boat engines back together in October 1999. Before the engines were installed in the boat, Normand tested them in his shop by running each one approximately six to eight times for an hour or two hours at a time. He checked the oil pressure with a gauge that he had installed into the block. He ran the engines on an idle speed of 400 to 500 rpm. He saw no problems.

| ¿Normand explained that in order to remove the engines, Normand had to remove the outdrives, which are on the bottom. These were corroded and Dr. Elliott had worked on them to remove the corrosion. After that, Normand reinstalled the outdrives.

According to Normand, after Normand reinstalled the engines Dr. Elliott insisted on testing the boat. Although Normand determined that the engines were operational, some controls still needed to be hooked up. On the other hand, Dr. Elliott testified he did not recall Normand telling him that Normand did not want to take the boat out for a test run.

An unsuccessful test run was performed in October or November 1999.

Normand testified that they ran the boat 45 minutes to one hour at 3000 rpm. At one point, it was increased to 4500 rpm for a short period. At 4500 rpm, Normand started hearing it knocking and it lost oil pressure. He told Dr. Elliott to immediately shut it down because Normand did not want to do any more damage. They shut off one engine — the other engine was running well. They returned to the shipyard with the other engine at a lower rpm. Dr. Elliott asked what was wrong. Normand said he did not know until they opened it up, and inspected it to see why it lost oil pressure, and made the noise.

According to Dr. Elliott, he questioned Normand about the low oil pressure reading on one engine and the different readings on each engine. He asked Normand if it was normal for there to be a difference. Norman said it was normal because no two engines were the same. Normand, however, testified that he did not know if Dr. Elliott expressed concern about the oil pressures. But, he knew the pressures were good so if he read a lower pressure he would not be concerned because different gauges read differently.

IsAccording to Dr. Elliott, they had to shut off the engine and drift into the dock because they could not put the boat in reverse or neutral. He said that Normand told him this was a simple fine-tuning matter and Normand would handle it.

Normand testified that he offered to correct the problem and then go for another trial run. Dr. Elliott, however, said he was disgusted. He said he had a friend with a slip in the Municipal Harbor and he would put the boat there and then call Normand to resume the work. Normand never heard from Dr. Elliott again until he was served with the petition in May 2000. If Dr. Elliott had contacted Normand, Normand would have done the repairs.

Dr. Elliott testified that after the run, he had serious doubts that Normand had the ability to perform any mechanical work. Dr. Elliott has not spoken to Normand since the day of the test run.

In November 1999 after the test run, Dr. Elliott took the boat to Gerald Caro-na. The boat sat there until May 2000. Dr. Elliott hired Corona to get a second opinion.

Carona, an expert automobile mechanic with expertise in Volvo engines and mer-cruiser engines, testified he is very familiar with the type of engine used in the mercruiser and he has worked on them for approximately 30 years. He has broken down and repaired 50 to 60 such engines. Normand, however, testified that before the contract with Dr. Elliott, Normand had only worked on approximately four or five boat engines of this type.

Before Dr. Elliott brought the boat to Corona, Corona inspected the engines at the marina. He told Dr. Elliott the boat would have to come out of the water and the engines removed and taken apart. He saw that the engines did not have oil | ^pressure. There was noise coming from both engines indicating an internal problem with the engines.

They started the engines and ran them at a low rpm. When the motor started, he was almost thrown out the back of the boat because the outdrives were not installed properly. This was a dangerous condition and it showed the incompetence of the person who did the work. There were problems with both engines. One had zero oil pressure. Normand improperly ran the engines in his garage. A professional facility to run the engines was required. The motor is designed to run in the boat. The engine is designed to be run by the water pump, which is connected to the outdrive. This draws water up and brings it to the engine at a certain volume. Without the proper volume, the engine chambers will overheat.

When Carona broke the engine down, he saw hot spots in the engine that showed water was not properly fed to the engine. He was positive that when Normand tested the engines in his garage, he damaged them. Running at idle for a prolonged period of time is incorrect.

Dr. Elliott brought Carona the boat in November 1999. In May 2000, Carona began working on it. There was severe internal damage. It took Carona about 38-1/2 hours to inspect the engines. He billed Dr. Elliott $2,502.50 for the inspection of both engines and Dr. Elliott paid the bill.

Carona found metal in the oil pan from the bearings of the engine. He also found rust and water in the oil. Metal in the oil pan means a failure in the metal bearings of the engine and they are in the process of being destroyed. He found the oil pumps were not attached correctly. They were loose, causing the engines to lose oil pressure. The improper installation of the oil pumps caused destruction of the engine. This would result in a pressure loss because oil would be dumped back [ 7into the oil pan rather than being distributed in the engine. He found the bolts were not torqued at the proper values. This allowed water to get into the engine. There was damage due to the water. Also, there was an excessive 20/1,000 clearance between the cylinder head wall and the piston skirt of the engine. Seals were damaged and improperly installed. Water was leaking from a water chamber into the oil side of the engine. Rust was on the internal parts of the engine. Rust was not due to exposure to outside weather.

Carona charged Dr. Elliott a storage fee of $2,856 from November 13, 1999 to the end of June 2000 and Dr. Elliott paid it. His storage rate is $12 a day, which is a standard rate.

Carona felt the engines were totally destroyed and that it would cost $20,360 to repower and replace the engines.

Norman agreed that a clearance of 20/1,000 was excessive but he denied that he had allowed such a clearance. He said that water and oil will get into the engine when you dismantle it and the engine was rusted because of the time delay before the inspection.

Carona inspected the Volvo to determine why it was running roughly. The water system contained oil at almost 50/50 water and oil. If Normand had flushed out the cooling system, there should not be any oil in the water system. He found the engine was overheating. It appeared that oil was entering from the turbo area. This normally causes high deterioration of the engine. He estimated $6,791.57 to break the engine down, repair it, and put it together.

Judicial Interest

“The court shall award interest in the judgment as prayed for or as provided by law.” La.C.C.P. art. 1921. La.R.S. 13:4203 provides: “Legal interest shall | sattach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’, which may be rendered by any of the courts.”

Normand asserts and Dr. Elliott concedes that the trial judge erred in awarding legal interest from the date of judicial demand in a lawsuit involving a breach of a repair contract rather than a claim for damages ex delicto.

We agree with the parties that an award of damages from a breach of a repair contract does not qualify for pre-judgment interest as intended by La. R.S. 13:4203. Accordingly, we vacate that portion of the judgment awarding interest from the date of judicial demand.

Damages

An obligor is liable for the damages caused by his failure to perform a conventional obligation. A failure to perform results from nonperformance, defective performance, or delay in performance. La. C.C. art. 1994. Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived. LSA-C.C. art. 1995. An obligor in good faith is liable only for the damages that were foreseeable at the time the contract was made. La. C.C. art. 1996.

The standard for reviewing the award of damages for breach of contract is whether the trial court abused its discretion. Hernandez v. Martinez, 00-1282 (La.App. 5 Cir.2/28/01), 781 So.2d 815, 821 (citations omitted).

Foreseeable Damages

As to the car, the trial judge awarded the amount Dr. Elliott paid to Normand for the repair. But for the boat, the trial judge awarded the amount to replace the engines and Carona’s storage fees. Normand contends that the only foreseeable |9contract damages were at most the contract amounts Dr. Elliott paid for the repairs. On the other hand, Dr. Elliott argues the trial judge abused his discretion in failing to award him all of his foreseeable damages.

Normand also asserts that the damage award should be reduced because Dr. Elliott did not give Normand the opportunity to correct any problems that may have existed in the initial work.

Dr. Elliott believed that because Normand caused severe damage from his repairs, Normand could not do the necessary repairs. Given Carona’s testimony regarding Normand’s incompetence, Dr. Elliott’s belief and actions were reasonable under the circumstances. Furthermore, the trial judge apparently concluded that Dr. Elliott’s actions in bringing the boat and car to Carona did not aggravate the damage that was already present.

With regard to the car, Normand testified he would have flushed it out again had the problem persisted. On the other hand, Carona testified that if Normand had flushed out the cooling system, there should not be any oil in the water system.

With regard to the boat, Normand testified that the rust in the engines was a result of the time delay before Carona’s inspection. Carona disagreed. Carona testified the rust was not due to exposure to the weather.

The trial judge evidently attached greater weight to Carona’s testimony. “ ‘[GJreat deference is accorded to the trial court’s factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court’s judgment.’ ” Joseph v. Elmwood Medical Center, 98-115 (La.App. 5 Cir. 6/30/98), 715 So.2d 703, 705 (citation omitted). We find no manifest error in the trial judge’s implicitly refusing to limit Dr. Elliott’s damages on the basis Dr. Elliott failed to give Normand an opportunity to repair the items. Under the facts and circumstances of this case, we Imconclude that when the boat engines and the car failed to perform, Dr. Elliott had no obligation to return them to Normand. To preserve his claim for foreseeable damages, Dr. Elliott was not required to perform a futile act.

We now proceed with an inquiry as to the foreseeable damages.

Costs for Refurbishing Boat

Dr. Elliott seeks an increase in the award to add $18,643.33 as reimbursement for the amount he incurred in refurbishing the boat.

Dr. Elliott testified that he performed maintenance on the boat to increase its value. Among other things, he painted it and placed a protective barrier coating on the boat. He also refurbished its interior. He spent about $20,000 to refurbish it. He has not operated the boat since the test run.

Normand testified he was aware that Dr. Elliott and Dr. Elliott’s father were refurbishing the bottom of the boat. He was not aware of any other refurbishing work.

Normand testified that he and Dr. Elliott agreed Normand would work on Saturdays on the boat. Moreover, after Dr. Elliott requested that Normand work on the Volvo, Normand began working on the Volvo from January to May 1999 rather than working on the boat engines.

There was no evidence presented that there was a specified time period within which Normand was to complete the boat repairs.

The trial court considered the testimony and found that Dr. Elliott was not entitled to damages for refurbishing the boat. “A court of appeal should not set aside the factual findings of a trial court absent manifest error or unless clearly wrong.” Siverd v. Permanent General Ins. Co., 05-0973 (La.2/22/06), 922 So.2d 497, 499, writ denied as moot, 05-0967 (La.4/24/06), 926 So.2d 532 (citation Inomitted). We do not find the trial court’s failure to award this amount to be erroneous. The trial judge evidently determined that this amount was not a foreseeable object of the repair contract.

Payment for Boat Slip

Dr. Elliott seeks an increase in damages of $4,953.60 as reimbursement for loss of use and payment of a boat slip at Municipal Yacht Harbor. Dr. Elliott testified that after the boat had problems, he maintained a boat slip at Municipal Yacht Harbor. He maintained the slip because it is difficult to get another. He paid $206.40 per quarter. Although he has a boat slip, he cannot place it there without insurance. A boat without motors cannot be insured. The boat is presently in a dry dock at Carona’s facility. He stored in at Corona’s because he cannot store it at his home or office.

Dr. Elliott testified that the reason he could not store the boat at his home was because he purchased a trailer for a car and had no room. The new trailer took the place of the boat trailer. Before the boat repairs, he had stored the boat trailer at his home.

We find no error in the trial judge’s failure to award these costs. The fact that Dr. Elliott could not store the boat at his home and had to pay for a boat slip was not an object of the repair agreement. There was no agreement that Normand had a specified time frame in which to repair the boat or that Normand would pay for these costs.

Carona’s Bill for Inspection and Boat Storage

The trial judge did not award Dr. Elliott damages for Carona’s inspection of the boat. Dr. Elliott argues that he erred because this was foreseeable damage. Dr. Elliott seeks $2,502.50 for Carona’s inspection of the boat engines.

|1?The trial judge evidently determined that a structural inspection was unnecessary to properly restore the boat. We find he erred. Normand testified that an inspection was necessary in order to determine why there was a loss in oil pressure and a noise. Likewise, Corona testified that he broke the engines down in order to find out what was wrong. It was only through Carona’s inspection that the cause of the failed test run could be determined. Thus, we amend the judgment to add $2,502.50 as reimbursement to Dr. Elliott for the amount he paid Carona to inspect the boat engines.

We find, however, that the trial judge abused his discretion in awarding Carona’s storage cost of $2,856.00 for boat storage from November 13, 1999 to the end of June 2000. Carona did not work on the boat until May 2000. Dr. Elliott testified he could not store the boat at his home where he had at one time because he purchased a car trailer and had no room.

La.C.C. art. 2002 provides:

An obligee must make reasonable efforts to mitigate the damage caused by the obligor’s failure to perform. When an obligee fails to make these efforts, the obligor may demand that the damages be accordingly reduced.
“This Article adjusts the conflict of interests that would otherwise exist when an obligee neglects to mitigate his damages and thereby exposes the obligor to further liability for consequences resulting from the obligor’s failure to perform that were reasonably avoidable by the obligee.” Lombardo v. Deshotel, 94 1172 (La.11/30/94), 647 So.2d 1086, 1092.

In a breach of contract action, an injured party has a duty to mitigate his damages. Rogers v. Nelson Dodge, Inc., 407 So.2d 443, 447 (La.App. 3 Cir.1981) (citations omitted). Dr. Elliott neglected to mitigate his damages as to the boat storage, thereby exposing Normand to further liability for consequences resulting |13from Dr. Elliott’s failure to perform that were reasonably avoidable by Dr. Elliott. Furthermore, the storage costs from November to May were not damages that were foreseeable at the time the contract was made. Instead, only the 30-day storage fees incurred by Dr. Elliott in connection with Carona’s inspection were foreseeable damages. Accordingly, we find that the trial judge abused his discretion in awarding storage fees in excess of 30 days. We amend the judgment to reduce the damage award for boat storage to allow only a 30-day storage fee of $360, based on Carona’s standard rate of $12 per day.

Costs of parts and labor paid by Dr. Elliott for the Repairs

The trial judge awarded as damages the amount Dr. Elliott paid Normand for the car repair, but he did not award Dr. Elliott the cost he paid for the boat repair. Dr. Elliott asks this court to increase the award to include the amount he paid Normand for the boat repair. We find that the trial judge abused his discretion in failing to award Dr. Elliott $6,353.67 as reimbursement for costs of parts and labor paid by Dr. Elliott to Normand for the boat repair. Dr. Elliott paid Normand this amount to repair the boat and Normand failed to do so. We amend the judgment to add $6,353.67 as reimbursement for costs of parts and labor paid by Dr. Elliott to Normand for the boat repair.

Value

Normand argues that the damage award should be reduced because the award of damages exceeds the value of the boat and of the car.

We find that in this case, Dr. Elliott’s award of $20,000 is not foreseeable. Dr. Elliott purchased a boat for $5,000 with engines that had to be rebuilt. He negotiated an inflated price based on an estimate of $17,159.65 to rebuild the engines. Carona provided an estimate of approximately $20,360 to replace the |uengines. Dr. Elliott did not pay Normand $17,159.65. Instead, he paid him $6,353.67 of Normand’s $6,985.47 charge.

This case is analogous to Davidge v. H & H Const Co., 432 So.2d 393, 395 (La.App. 1 Cir.1983). In that case, which concerned defective cabinet work, the First Circuit reduced the damage award because the trial court had awarded an amount for cabinet replacement of a greater quality than the original cabinet. There the evidence proved that the replacement work utilized better quality materials than what was originally used in the construction. Likewise, we find that the trial judge abused his discretion in awarding $20,000 as new engines to replace the original engines that needed to be rebuilt. Thus, the trial judge awarded an amount that exceeded the value of the original engines. The $20,000 amount of damages is amended to $6,353.67 which is the amount that Dr. Elliott lost — the amount he paid Normand for the repair of the boat.

Carona testified that he gave Dr. Elliott an estimate of what it would cost to repair the car — $6,791.57—to break the engine down and repair the Volvo. The trial judge awarded the amount Dr. Elliott paid Normand for the repair. Since Normand failed to make the repair, there was no error.

Dr. Elliott seeks an increase in damages to add $307.82 for an inspection of the car.

Dr. Elliott testified that after he submitted the Volvo to Carona, he drove the car to Bergeron Volvo and obtained an inspection at a cost of $307.82. Carona, however, inspected the car and gave Dr. Elliott an estimate for its repair. The trial judge did not err in failing to award $307.50 for an additional inspection.

| ^DECREE

For the above and foregoing reasons, we vacate the portion of the judgment that awards judicial interest from the date of judicial demand. We amend that portion of the judgment that awards $20,000 for the boat and reduce that award to $6,353.67 as reimbursement for costs of parts and labor paid by Dr. Elliott to the defendants for the boat repair. We amend the judgment to reduce the amount awarded for boat storage from $2,856 to $360. We amend the judgment to award Dr. Elliott the following additional amount of damages: $2,502.50 as reimbursement for the amount paid to Gerald Carona for inspecting the boat engines. In all other respects, we affirm the judgment of the trial court. Each party is to bear his own costs of this appeal.

VACATED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED.

      . Attorneys Scott W. McQuaig and W. Chad Stelly filed a petition for intervention seeking attorney’s fees. On the day of trial, the trial judge agreed to sever the intervention claim.

      . He is also referred to as "Jerry Caronia.”


author: WALTER J. ROTHSCHILD, Judge.

text:
    Yvonne BALDINI v. EAST JEFFERSON GENERAL HOSPITAL, Dr. Donald Adams & Dr. John Gordon.
    No. 07-CA-489.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Brian G. Birdsall, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Jacqueline H. Blankenship, Stephen H. Shapiro, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKS HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|3In this medical malpractice action, plaintiff appeals a trial court judgment sustaining defendants’ Exceptions of Prescription and dismissing her lawsuit and Medical Review Panel claims. For the reasons which follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 1, 2004, plaintiff, Yvonne Baldini, presented to East Jefferson General Hospital (“East Jefferson”) for rehabilitation after having a mild stroke. According to Ms. Baldini, her rehabilitation coordinator, Dr. Donald Adams, suggested that she undergo a bilateral temporal artery biopsy in order to rule out temporal arteritis as a possible cause of her stroke. On December 6, 2004, Dr. John Gordon began the procedure. Plaintiff claims that during the procedure, Dr. Gordon’s elec-trocautery unit laser ignited oxygen used in the procedure, causing severe second degree burns to her face and other complications.

|40n December 1, 2005, plaintiff filed suit against East Jefferson, Dr. Donald Adams, and Dr. Gordon, asserting that she suffered severe and serious damages as a result of the negligence of these defendants. Also on December 1, 2005, plaintiff filed a malpractice complaint with the Louisiana Patient’s Compensation Fund (“PCF”), in which she requested review of her claims by a medical review panel. In a letter dated December 7, 2005, the PCF acknowledged receipt of plaintiffs complaint and advised plaintiffs counsel that a $300 filing fee was due to the PCF within forty-five (45) days of the date of the letter, in accordance with LSA-R.S. 40:1299.47 A(l)(c). The PCF’s letter further notified plaintiffs counsel that “[failure to comply shall render the request invalid and without effect and the request shall not suspend the time within which suit must be instituted.”

On December 13, 2005, defendants filed an Exception of Prematurity, asserting that plaintiffs lawsuit was filed in contravention of LSA-R.S. 40:1299.47 B(l)(a)(i), because a medical review panel had not been completed. In February 2006, by consent of the parties and pursuant to the Exceptions of Prematurity, the trial court dismissed plaintiffs lawsuit against defendants without prejudice.

In a letter dated April 18, 2006, the PCF notified plaintiffs counsel that it had not received the filing fees that plaintiff was required to pay within the 45 days set forth in LSA-R.S. 40:1299.47 A(l)(c). The letter indicated that, because the PCF did not receive the required filing fee within the time allowed by law, plaintiffs complaint was invalid, without effect, and “no longer considered filed” by the PCF. On April 25, 2006, plaintiff filed a second Petition for Damages in the Twenty-Fourth Judicial District Court and a second complaint with the PCF requesting a medical review panel. Plaintiffs counsel also submitted the $300 filing fee when he filed the second complaint with the PCF. In a letter dated May |R2, 2006, the PCF acknowledged receipt of plaintiffs request for a medical review panel and the $300 filing fee.

On June 16, 2006, defendants filed Exceptions of Prescription, arguing that plaintiffs claims against them had prescribed because the second lawsuit was not filed within the one-year prescriptive period set forth in LSA-R.S. 9:5628. A hearing on defendants’ Exceptions of Prescription was held on January 5, 2007, and the trial court took the matter under advisement. On February 2, 2007, the trial court rendered a judgment sustaining defendants’ Exceptions of Prescription and dismissing plaintiffs claims against defendants. It is from this ruling that plaintiff, Yvonne Baldini, appeals.

LAW AND DISCUSSION

On appeal, plaintiff asserts that the trial court erred in granting defendants’ Exceptions of Prescription.

The party bringing an Exception of Prescription normally bears the burden of proof at the hearing of the exception. Hudson v. East Baton Rouge Parish School Board, 02-987, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 282, 286; Campo v. Correa, 01-2707, p. 7 (La.6/21/02), 828 So.2d 502, 508. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action is not prescribed, because prescription has been interrupted or suspended in some manner. Id.; Jinright v. Glass, 06-888, p. 6 (La.App. 5 Cir. 2/27/07), 954 So.2d 174, 177, writ denied, 07-570 (La.5/4/07), 956 So.2d 618.

LSA-R.S. 9:5628(A) provides that a medical malpractice action must be brought within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect. Prescription begins to run when a plaintiff has actual or constructive knowledge of facts indicating to a reasonable person that she is the victim of a tort. In re: Medical Review Panel of Lafayette, 03-457 (La.App. 5 Cir. 10/15/03), 860 So.2d 86, 89. The prescriptive period for a medical malpractice claim commences upon the occurrence of the injury when the damages are immediately apparent. In re: Medical Review Panel for Claim for Moses, 00-2643, p. 8 (La.5/25/01), 788 So.2d 1173, 1178.

In the present case, the alleged malpractice occurred on December 6, 2004, when plaintiff underwent a procedure during which a laser ignited oxygen resulting in burns to plaintiffs face. Plaintiffs allegations of second degree burns caused by this procedure surely indicate that the damages were immediately apparent. Thus, the prescriptive period for plaintiffs medical malpractice claims began to run on December 6, 2004 when plaintiffs injuries were allegedly sustained.

Plaintiffs second Petition for Damages, which is at issue in this appeal, was filed on April 25, 2006. Also on this date, plaintiff made a second request to the PCF for a medical review panel. Because plaintiffs second Petition for Damages and second PCF complaint were filed over one year after the date of the alleged malpractice, plaintiffs claims have prescribed on their face. Consequently, on defendants’ Exceptions of Prescription, the burden shifted to plaintiff to show that her claims had not prescribed. The trial court found that plaintiff did not meet this burden. We agree.

Plaintiff argues that the trial court erred in granting defendants’ Exceptions of Prescription, because the malpractice claim she filed with the PCF on December 1, 2005 should still be considered valid and viable. She asserts that her failure to pay a $300 filing fee to the PCF within 45 days of December 7, 2005 did not render her claim invalid. She further contends that due to “Hurricane Katrina and the Executive and Legislative suspension of applicable deadlines,” she was entitled to an extension of time to pay the PCF’s filing fees.

|7Plaintiff filed a complaint with the PCF requesting a medical review panel on December 1, 2005. In accordance with LSA-R.S. 40:1299.47 A(3)(b), the PCF sent notice to plaintiffs counsel of the required filing fee and informed him that failure to pay this fee within 45 days would render plaintiffs request for a medical review panel without effect and the request would not suspend the time for filing suit.

LSA-R.S. 40:1299.47 A(l)(c) provides that a claimant shall have “forty-five days from the mailing date of the confirmation of receipt of the request for review” to pay a filing fee of $100 per qualified named defendant. LSA-R.S. 40:1299.47 A(l)(e) provides that failure to pay the required filing fee within the specified time frame “shall render the request for review of a malpractice claim invalid and without effect,” and “an invalid request for review of a malpractice claim shall not suspend time within which suit must be instituted.” Plaintiff does not dispute that the required filing fees were not paid within the 45 days set forth in LSA-R.S. 40:1299.47 A(l)(c). However, she asserts that she should have been allowed an extension of time to pay these fees pursuant to LSA-R.S. 9:5824, due to the effects of Hurricane Katrina.

LSA-R.S. 9:5822 through 9:5824 were passed by the legislature in ratification of Governor Blanco’s Emergency Orders after Hurricanes Katrina and Rita. LSA-R.S. 9:5822 provides in pertinent part:

A. All prescriptions, including libera-tive, acquisitive, and the prescription of nonuse, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006. This limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim, or action which would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006.

|sLSA-R.S. 9:5824(B) states in pertinent part:

(1) Notwithstanding the provisions of R.S. 9:5822 or 5823, a party who is domiciled within the parishes of Cameron, Orleans, Plaquemines, St. Bernard, Jefferson, or Vermilion, or whose cause of action arose within such parishes or whose attorney is domiciled within or has a law office within such parishes, may seek in any court of competent jurisdiction in this state a limited suspension and/or extension of prescription or peremption periods or other legal deadlines, beyond the termination dates provided in R.S. 9:5822 and 5823, by contradictory motion or declaratory judgment. The party seeking an additional suspension and/or extension, in accordance with the provisions of this Section, shall bear the burden of proving by a preponderance of the evidence that the motion was filed at the earliest time practicable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met. If the court grants the motion, the prescription or peremptive period or other legal deadline shall be suspended or extended for a period not to exceed thirty days from the date of the granting of the motion. This limited suspension or extension shall terminate on June 1, 2006, and any right, claim, or action which would have expired during the time period of January 4, 2006, through May 31, 2006, shall lapse on June 1, 2006. (Emphasis added.)
(2) The failure to file the motion authorized in Paragraph (1) of this Subsection shall not preclude a party from using the basis of the motion as a defense to an exception of prescription.

In the instant case, the $300 filing fee at issue was due to the PCF on or about January 20, 2006. Thus, the suspension of legal delays set forth in LSA-R.S. 9:5822 does not apply to plaintiffs failure to pay the PCF’s filing fees, because the period of time to pay these fees did not lapse between August 26, 2005 and January 3, 2006. LSA-R.S. 9:5824 allows a party to seek an additional suspension or extension of time for thirty days or until June 1, 2006 due to the effects of Hurricane Katrina. However, plaintiff never filed any pleading or request for such an extension in this case. Moreover, although failure to file a motion for extension or suspension does not preclude a party from using the basis of the motion as a defense to an exception of prescription, plaintiff did not establish by a preponderance of the evidence that the filing fees would have been timely paid but |9for the effects of Hurricane Katrina. See Parker v. B & K Construction Co., Inc., 06-1465 (La.App. 4 Cir. 6/27/07), 962 So.2d 484.

Plaintiff also .argues that she should have been granted additional time to pay the PCF’s filing fees because, due to Hurricane Katrina, plaintiffs counsel did not receive the PCF’s letter dated December 7, 2005, acknowledging receipt of plaintiffs request for review and informing plaintiff of the filing fees and consequences for failure to timely file these fees. Plaintiffs counsel acknowledges that the PCF’s December 7, 2005 letter was received by a receptionist at his law firm. However, he claims that she was authorized to receive regular mail but not certified mail, and he claims that he never personally received the letter. Plaintiffs counsel argues that but for the fact that his office was not operating at full capacity in the aftermath of Hurricane Katrina, his secretary would have received the mail and the required filing fees would have been timely paid to the PCF. Accordingly, plaintiff asserts that she should be entitled to an extension of suspension of legal delays for payment of filing fees because Hurricane Katrina ultimately caused her failure to pay the required fees. We find this argument to be unpersuasive.

In opposition to defendants’ Exceptions of Prescription, plaintiff submitted the affidavit of Claudia Breaux, the receptionist who signed for the PCF’s December 7, 2005 letter. In her affidavit, Ms. Breaux stated that she has been employed as a receptionist at the office of plaintiffs counsel for 21 years and that her job duties include receiving and sorting mail, though she was not authorized to receive certified mail. We note that LSA-R.S. 40:1299.47 A(l)(c) specifically sets forth the requirement that a claimant pay the required filing fees to the PCF within 45 days from mailing of the confirmation of receipt of the request for a medical review panel. Even if plaintiffs counsel was unaware of the provisions of LSA-R.S. 40:1299.47 A(l)(c), it is undisputed that notification of these provisions was hnsent to plaintiffs counsel and received by a long-time employee in his office. Plaintiff has not shown by a preponderance of the evidence that, but for the catastrophic effects of Hurricane Katrina, the legal deadline to pay the PCF’s filing fees would have been met. Thus, she has not shown that she was entitled to an extension or suspension of delays under LSA-R.S. 9:5824.

Plaintiff further contends that the PCF incorrectly determined that the filing of plaintiffs medical malpractice complaint on December 1, 2005 was untimely due to failure to timely pay filing fees. However, the PCF did not determine that plaintiffs first complaint filed December 1, 2005 was untimely. Rather, the PCF sent a letter to plaintiffs counsel notifying him that plaintiffs complaint was “no longer considered filed” and was invalid and without effect due to plaintiffs failure to pay filing fees. In fact, the PCF never found either of plaintiffs complaints or requests for a medical review panel to be untimely. Further, although plaintiff argues that her December 1, 2005 complaint should not have been rendered invalid due to failure to pay filing fees, plaintiff never took any action or filed any pleadings, such as a mandamus action, to contest the PCF’s determination that her first complaint was invalid and without effect. Instead, plaintiff simply filed a second lawsuit and a new, second request for a medical review panel and included the $300 fee with this request.

Plaintiff further asserts that the trial court incorrectly relied solely on the PCF’s determination that the malpractice claim filed on December 1, 2005 was invalid, thus rendering the malpractice suit untimely. However, the record before us does not reveal that the trial judge relied solely on the PCF’s determination that plaintiffs complaint was invalid when granting defendants’ Exceptions of Prescription. Rather, the trial judge heard arguments from both sides regarding the merits of defendants’ exceptions prior to rendering a judgment.

InFinally, plaintiff asserts that the Louisiana Medical Malpractice Act unconstitutionally “allows the PCF to accept claims without payment of any filing fee, and deems them filed for purposes of interrupting prescription, yet after the passage of 45 days then deems the claim invalid if payment is not received, thus nullifying the previously recognized interruption of prescription.”

It is well-settled that litigants must raise a constitutional challenge in the trial court, rather than in the appellate court. Mallard Bay Drilling, Inc. v. Kennedy, 04-1089, p. 8 (La.6/29/05), 914 So.2d 533, 541. A constitutional challenge must also specifically plead the challenge and the grounds for the claim must be particularized. Id. The purpose of this requirement is to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for appellate review. Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 865.

In the instant case, plaintiff did not raise the issue of the constitutionality of LSA-R.S. 40:1299.47 A(l)(e) or any other section of the Louisiana Medical Malpractice Act in the trial court. Accordingly, because this constitutionality issue has been raised for the first time on appeal, it is not properly before us and cannot be considered.

In conclusion, plaintiffs initial lawsuit was filed on December 1, 2005, but was subsequently dismissed on an Exception of Prematurity. With regard to plaintiffs December 1, 2005 request for a medical review panel, it is invalid and without effect due to plaintiffs failure to pay the required filing fees to the PCF. An invalid request for review of a malpractice claim does not suspend the time within which suit must be instituted, as per LSA-R.S. 40:1299.47 A(l)(e). Without interruption or suspension of prescription in this case, plaintiffs Petition for Damages and second request for a medical review panel filed April 25, 2006 were | ^.untimely, because they were not filed within one year of the alleged malpractice. Considering the record before us, the parties’ arguments, and the applicable law, we find that the trial court did not err in granting defendants’ Exceptions of Prescription.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court, granting defendants’ Exceptions of Prescription and dismissing plaintiffs claims.

AFFIRMED.


text:
    Fawnclair Honeycutt, Wife of/and Roy HONEYCUTT v. Alicia J. DEUTSCHMANN and State Farm Mutual Automobile Insurance Company.
    No. 07-CA-211.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.
    Peyton B. Burkhalter, David I. Cour-celle, Courcelle & Burkhalter, Metairie, Louisiana, for Plaintiff/Appellant.

      Gus A. Fritchie III, McDonald G. Pro-vosty Irwin Fritchie Urquhart & Moore, New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

On April 24, 1999, Fawnclair Honeycutt (“Honeycutt”) was operating her vehicle northbound on La. 437 near the intersection with W. 32nd Ave. when a vehicle being driven by Alicia Deutschmann (“Deutschmann”) failed to stop at a stop sign and collided with Honeycutt’s vehicle. On April 6, 2000, Honeycutt and her husband, Roy Honeycutt, filed a Petition for Damages naming Deutschmann and her insured, State Farm Mutual Automobile Insurance Company, as defendants. The Honeycutts later filed First and Second Supplemental and Amending Petitions for Damages naming Choice Courier Systems, Inc. (“Choice”) as a defendant. Deutsch-mann was a driver, or courier, for Choice. At the time of the accident, she was “on call” and was in the process of a delivery of blood for Choice to a patient undergoing surgery. Therefore, the Honeycutts contended Choice was vicariously liable for the negligence of Deutschmann.

On March 29, 2006, Choice filed a motion for summary judgment. Choice argued that Deutschmann was an independent contractor under an agreement with Choice, so Choice is not vicariously and/or strictly liable under the theory of respon-deat superior.

laA hearing was held before the trial court on October 5, 2006. The trial court granted the summary judgment and stated in open court that Choice was an independent contractor. The trial court found that no genuine issues of material fact were in dispute and found nothing to support Deutschmann’s concerns regarding what would happen if she took certain actions regarding her work with Choice.

The trial court issued a written judgment on October 25, 2006 granting the motion for summary judgment, dismissing all claims against Choice with prejudice and designating the judgment as final. The Honeycutts have now filed this appeal. For the reasons which follow, we reverse the trial court’s granting of summary judgment in favor of Choice and remand the matter to the trial court for further proceedings.

DISCUSSION

On appeal, in determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Crayton v. Central Storage Center, LLC, 06-441 (La.App. 5 Cir. 10/17/06), 944 So.2d 643, citing, Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

This case involves review of the relationship between Choice and Deutsch-mann to determine whether Deutschmann was an independent contractor |4of Choice. If she was an independent contractor, and not considered an employee, Choice would not be vicariously liable for her actions in this accident.

The Louisiana Supreme Court has set forth factors for consideration when determining whether an independent contractor relationship exists. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (La.1972). Those factors include: 1) whether there is a valid contract between the parties, 2) whether the work being done is of an independent nature, such that the contractor may employ a non-exclusive means in accomplishing it, 3) whether the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to control and direction of principal, except as to the result of the services rendered, 4) whether there is a specific price for the overall undertaking agreed upon, and 5) whether 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.

Deutschmann and Choice entered into an Agreement for Transportation Services (“Agreement”) on March 17, 1998. The Agreement named Choice as the “Corporation” and Deutschmann as the “Contractor”, stating that the Contractor would operate a delivery service for corporations in the delivery service business. Under the heading “Contractor’s Services”, the Agreement provides that the Contractor shall maintain and exercise full control over the services performed by Contractor and over the means used to perform said services.

Section 6 of the Agreement specifically provides that the Contractor’s relationship to the Corporation shall be that of an independent contractor vested with full right and power to perform all acts and things which, in its sole discretion and manner, it deems necessary in the fulfillment of its obligations and to provide ^services as a contractor to others as desired, as long as that activity does not conflict with the rights of the Corporation. The Agreement also provides that the Contractor shall have the sole and complete discretion to hire all personnel engaged by it to carry out its obligations and to determine the specific mode and manner in which the duties shall be performed.

Additionally, the Agreement states that the Contractor shall not be considered as having the status of an employee of the Corporation for federal, state or local tax purposes, or for any other purpose. The Agreement also provides for a term of ninety days and if not terminated at the end or before the end of the ninety days, it shall be deemed renewed for a period of ninety days. The Agreement may be terminated by either the Corporation or the Contractor at any time upon giving ten days written notice.

According to the written Agreement alone, Deutschmann would be considered an independent contractor. However, a review of the deposition testimonies of Deutschmann and Don Oubre, the Louisiana Manager for Choice, and Mike Beck, the Executive Vice President and Chief Financial Officer of Choice, indicates the every day practices and actions of Choice are not consistent with the written agreement and designation of Deutschmann as an independent contractor. Therefore, we find there are genuine issues of material fact regarding whether or not Deutsch-mann is considered an independent contractor using the factors set forth in Hickman, supra.

There was a valid contract between Choice and Deutschmann and that contract states that Deutschmann was an independent contractor. However, the testimonies presented indicate questions of fact regarding whether the work performed by Deutschmann was of an independent nature, such that Deutsehmann could employ non-exclusive means in accomplishing it and whether the work |ficouId be done according to the independent contractor’s own methods, without being subject to the control and direction of Choice. Both Mike Beck and Deutsehmann testified by deposition that there were no written policies and procedures given to the drivers requiring them to perform their deliveries in a specific manner. However, the deposition testimony of Oubre indicates Choice exercised more control over the drivers’ performance of their duties.

Oubre testified that Choice wanted each driver that had been interviewed and accepted by Choice, to actually complete the work. He indicated that drivers could use someone else to make deliveries, but only on a limited exception basis. Oubre also stated that if a driver wanted to hire someone to have available to help with deliveries, Choice required an interview and acceptance of the additional driver.

Oubre also explained that some drivers had specific routes assigned to them that included deliveries that were made on a regular basis. If a driver agreed to a specific route, that driver gave up some control of his hours and was required to be at a certain place at a certain time. If a customer requested an additional delivery from a driver, the driver would call the dispatcher to advise of the additional delivery before undertaking the additional work.

In addition, when drivers were “on call”, the driver had to be available for deliveries and call the dispatcher to report for duty. Drivers that were “on call” were expected to take the calls the dispatcher got during the “on call” time.

Oubre also testified that it wasn’t unusual for couriers to work for different companies. However, Deutchsmann testified it was her understanding that it was improper for a Choice driver to make deliveries for any courier service other than Choice. The testimonies from both Deutsehmann and Oubre indicate questions of pfact concerning the amount of control Choice exercised over the work performed by its drivers.

We also find there is a question of fact regarding whether the duration of the work to be performed was for a specific time and not subject to termination at the will of either side without liability for its breach. The Agreement stated it was for a term of ninety days, and would be renewed for another ninety day term if not terminated. The Agreement also stated it could only be terminated by written notice ten days prior to the expiration of the ninety day period. However, the testimonies presented indicate that if Choice was dissatisfied with a driver, the dispatcher would simply stop giving that driver delivery assignments. The drivers could refuse delivery assignments. But, Deutsehmann contends that if a driver did so repeatedly, that driver was viewed as unreliable and was dropped from the roster.

After reviewing the Agreement entered into by Choice and Deutsehmann and the deposition testimonies presented, we find there are genuine issues of material fact regarding whether Deutsehmann should be considered an independent contractor of Choice. Accordingly, we reverse the trial court’s granting of summary judgment in favor of Choice and remand this matter to the trial court for further proceedings.

REVERSED.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Ty ADAMS.
    No. 2007-KA-0977.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 2008.

      Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Appellant.
    Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.
   MICHAEL E. KIRBY, Judge.

\,statement of case

On August 24, 2005, appellant, Ty Adams, was charged by bill of information with possession of crack cocaine. He entered a not guilty plea on September 29, 2006, and on February 16, 2007, the district court found probable cause and denied the motion to suppress the evidence. Following a jury trial on June 19, 2007, appellant was found guilty of attempted possession of cocaine. After waiving delays, the district court sentenced him to a thirty-month suspended sentence at hard labor. Appellant was placed on thirty months of active probation with several conditions. His motion to reconsider sentence was denied; the motion for appeal was granted.

STATEMENT OF FACT

On the evening of May 25, 2006, Officers Carter and Ogden were on proactive patrol in a marked police vehicle in the 1900 block of Seventh Street. In front of an abandoned house they observed appellant, who appeared to be urinating. When appellant saw the police vehicle, he began shuffling with his pants, and he ducked behind some bushes. At that point, the officers elected to [2conduct a stop; they exited the vehicle and instructed appellant to reveal himself. The officers did not draw their weapons. After a second instruction to reveal himself, appellant complied, and he was instructed to come towards the police vehicle. When he began exiting the yard, the officers met him. The officers detected the smell of urine and observed a wet spot on the pavement. Appellant told the officers that he was only urinating. Officer Ogden then arrested appellant for lewd conduct, placed handcuffs on him, and advised him of his rights.

Appellant was taken to the police vehicle, and he leaned his right side against the vehicle. Officer Ogden asked him to step away from the vehicle so that a search incident to his arrest could be conducted. When he stepped away from the vehicle, both officers observed a bulge in his right, front pants pocket. Officer Ogden retrieved from the right pocket a plastic bag containing several individually wrapped pieces of what appeared to be crack cocaine. The officer also found $445.00 in his left, front pocket. Appellant was then advised that he was also being arrested on a narcotics violation. After securing appellant, Officer Ogden looked around the abandoned house to see whether anyone else was present. No one else was there.

The cocaine and currency were admitted into evidence. The defense accepted the state’s stipulation that the substance removed from appellant’s right pocket tested positive for cocaine.

Appellant testified that he experienced a flat on his rental car that night. A family friend, Jeffery Gardner, was changing the flat when the police pulled up and exited the police vehicle with their weapons drawn. The officers called him to the vehicle, and appellant complied, placing his hands upon the vehicle; he testified that he never leaned against the vehicle. The officers recovered from his pockets 13$445.00, keys, and a cell phone, but no drugs. Mr. Gardner remained on the scene the entire time, but he did not intervene.

Appellant testified further that he was not arrested until after Officer Ogden looked around the abandoned house and whispered something in his partner’s ear. He was then taken to the Sixth District Police Station. Once in a small room at the station, the officers removed a scale from the closet and placed some crack on the scale. It was then that appellant learned why he was being arrested. He testified that he was employed at the time of his arrest.

In rebuttal, the state called Officer Ogden back to the stand. He testified that no one was with appellant the night he was arrested. The officer did not recall any car with a flat tire or that was broken down.

ERRORS PATENT/ASSIGNMENT OF ERROR NUMBER 2

None.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment of error, appellant asserts that the trial judge abused his discretion when he failed to grant a mistrial under La.C.Cr.P. art. 771 after Officer Carter implied through his testimony that appellant had a history of arrest warrants.

| ¿During cross-examination by defense counsel, the following exchange occurred:

Q. You arrest people for urinating in public instead of giving them a citation?
A. Depending on a history of warrants or—
Q. I didn’t ask you that. The question was, do you — in this particular case, you decided not to give a citation, but just arrest him.
A. Well, my partner had placed him under arrest due to the fact that he didn’t have any ID on him. Like I say, coupled with the fact of having a history of warrants.

Following this exchange, a discussion occurred in the judge’s chambers in which defense counsel moved for a mistrial because there was no mention of a history of arrest warrants in the police report and because the officer’s testimony made appellant look like an evildoer. Instead of granting counsel’s motion, the court chose to see whether the error could be cured by rehabilitating the witness, reserving defense counsel’s right to raise the issue again.

After the defense concluded its cross-examination of Officer Carter, the state asked whether appellant’s lewd conduct of urinating in public was an arrestable offense, and the officer replied affirmatively. Counsel renewed his motion for mistrial. After a discussion in chambers, the judge denied the motion, noting that the officer’s testimony was elicited by the defense during cross-examination, and it |Bwas responsive to the line of questioning in progress at the time. Defense counsel noted his objection; he did not request an admonition.

Except under certain statutory or jurisprudential exceptions, evidence of other crimes or bad acts committed by the defendant is inadmissible at trial. La. C.E. art. 404(B)(1). In State v. Sartain, 98-0378 (La.App. 4 Cir. 12/1/99), 746 So.2d 837, 845, this court reviewed the relevant jurisprudence as follows:

When a witness refers directly or indirectly to another crime committed or alleged to have been committed by the defendant, as to which evidence is not admissible, the defendant’s remedy is a request for an admonition or a mistrial pursuant to LSA-C.Cr.P. art. 771. The remark or comment must constitute an unambiguous reference to other crimes. State v. Lewis, 95-0769, p. 7 (La.App. 4 Cir. 1/10/97), 687 So.2d 1056, 1060, writ denied, 97-0328 (La.6/30/97), 696 So.2d 1004. On request, the trial court shall admonish the jury to disregard such remark or comment. La.C.Cr.P. art. 771. Upon motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant of a fair trial. Id. The granting of a mistrial under La.C.Cr.P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Smith, 418 So.2d 515, 522 (La.1982); State v. Allen, 94-1895, p. 9 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078, 1085, writs denied, 95-2557, 95-2475, (La.2/2/96), 666 So.2d 1087. Mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the defendant. Id. The determination of whether prejudice has resulted lies within the sound discretion of the trial court. State v. Banks, 96-2227, p. 2 (La.4/18/97), 692 So.2d 1051, 1053. A trial court’s ruling on whether or not to grant a mistrial because of comments by a police officer referring to other crimes evidence should not be disturbed absent a clear abuse of discretion. State v. Nicholson, 96-2110, p. 13 (La.App. 4 Cir. 11/26/97), 703 So.2d 173, 180, writ denied, 98-0014 (La.5/1/98), 805 So.2d 200; State v. Manuel, 94-0087, 94-0088, p. 4 (La.App. 4 Cir. 11/30/94), 646 So.2d 489, 491. “Errors are harmless unless the reviewing court is thoroughly convinced that the remarks inflamed the jury and contributed to the |fiverdict.” State v. Nicholson, supra, citing State v. Byrne, 483 So.2d 564 (La.1986), cert. denied, Byrne v. Louisiana, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986).

Id. at pp. 10-11, 746 So.2d 845-846.

Here, we cannot say that Officer Carter’s testimony was an unambiguous reference to other crimes is certainly arguable. The reference was an isolated event, and as the trial court noted, the officer’s testimony was responsive to questions asked by defense counsel. Also, the answers given by the officer do not show that he intended to prejudice appellant, and it was later established that appellant could be arrested based solely on his lewd actions. Thus, the district court did not abuse its discretion by denying the motion for mistrial. Again, counsel did not seek an admonition. Furthermore, even assuming the trial court erred in denying the motion for mistrial, in light of the strength of the state’s straightforward case, we find the verdict was clearly unattributable to the error. This assignment of error lacks merit.

CONCLUSION

For the above and foregoing reasons we affirm appellant’s conviction and sentence.

AFFIRMED.

      . La.C.Cr.P. art. 771 provides in pertinent part:
      In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:

      (2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
      Additionally, La.C.Cr.P. art. 770 mandates a mistrial upon motion of a defendant, “when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to ... [ajnother crime committed or alleged to have been committed by the defendant as to which evidence is inadmissible]?]” However, a police officer is not a “court official” under Article 770. State v. Harper, 430 So.2d 627 (La.1983); State v. Torres, 580 So.2d 1064 (La.App. 4 Cir. 1991) and article 771 rather than article 770 applies.