author: PEATROSS, J.

text:
    Bing BISHOP, as Agent for Bing Bishop Construction Co., Inc. and Bing Bishop Construction Company, Inc., Plaintiffs-Appellees v. Ken SHAW, Cindy Shaw and Kenworths, Defendant-Appellant.
    No. 43,137-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2008.

      Lunn, Irion, Salley, Carlisle & Gardner by Ronald E. Raney, Shreveport, Charles L. Cook, Monroe, for Appellant Ken Shaw.
    Crawford & Joyce by Brian E. Crawford, Monroe, for Appellee.
    Before WILLIAMS, STEWART & PEATROSS, JJ.
   PEATROSS, J.

|! Bing Bishop, as agent for Bing Bishop Construction Co., Inc., and Bing Bishop Construction Co., Inc. (collectively herein “Plaintiff’), filed suit on an open account against Defendant, Ken Shaw. Plaintiff alleged that Defendant failed to pay for construction work completed on two properties. After a bench trial, the trial court found that Plaintiff was entitled to $91,130.47. Defendant appeals this judgment. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS

Plaintiff and Defendant entered into a fixed amount contract for renovations to two adjacent residential properties owned by Defendant. One property was Defendant’s residence, and he used the adjacent property as a business office. Under the original fixed amount contract, Defendant hired Plaintiff to build a two-stall garage at the back of the residence. During the construction, the scope of the project was expanded with several changes to the original specifications. Plaintiff extensively repaired an existing sunroom, including the roof, and added a new room to the second story. The garage was completed and tied to the house and part of the adjacent house was removed to make room for a new driveway that ran between the two houses back to the new garage. The adjacent house was then re-enclosed and bricked. In total, Plaintiff submitted a list of seventy-six projects he completed in addition to the original fixed amount eon-tract. The additional work was done pursuant to an oral contract on a cost-plus 15 percent basis. Plaintiff was to keep track of his costs associated with the | ¡.project and Defendant would reimburse him for those costs plus pay him 15 percent of those costs as profit.

The first invoice from Plaintiff was for $48,506. Defendant paid this bill with two checks totaling $55,000, leaving a credit of $6,494. Defendant received a second invoice for $162,910. This second invoice stated that it was for “labor, material, equipment, taxes and insurance for all work to date” which was May 25, 2005. This figure included the previously paid amount of $60,000. The invoice was. generated by Plaintiff at Defendant’s request so that Defendant could submit it to his bank to finance the construction.

The unpaid balance of $107,910 was then separated into four separate invoices at Defendant’s request. Defendant paid the entire $162,910 amount by July 1, 2005. He testified that he understood that he had paid for all work completed before May 25, 2005. Defendant contends that he was unaware that Plaintiff had any further outstanding accounts payable from third party subcontractors for work performed prior to May 25, 2005.

Defendant also contends that he spoke to Plaintiff on or about July 1, 2005, and Plaintiff advised him that the project would probably cost $8,000 to $20,000 more to complete. Plaintiff denies having that conversation, but testified that he had told Defendant that there was $20,000 to $30,000 more construction work to be done. Plaintiff testified that this amount did not include work that was already performed, but not yet billed to Defendant. Shortly after this conversation, an invoice for the remaining cost of $85,304 was delivered to Defendant. Defendant refused to pay and Plaintiffs |aattorney sent Defendant a demand letter for $92,105.95, representing the outstanding balance for the project. Defendant again refused to pay and Plaintiff filed this suit on an open account seeking payment and attorney fees. After considering applicable credits, Plaintiff reduced his demand to $91,130.47. This amount was ultimately awarded by the trial court.

Plaintiff filed a motion for summary judgment with various documents attached, including invoices from third party subcontractors who worked on Defendant’s project. The trial court denied Plaintiffs motion for summary judgment. Defendant anticipated that Plaintiff would attempt to prove his claim with the invoices received from subcontractors or material-men and filed a motion in limine seeking to exclude the invoices as hearsay. The trial court denied the motion. Defendant also filed a motion compelling discovery, arguing that Plaintiffs answers to his interrogatories were evasive and incomplete. The trial court denied this motion.

As previously stated, after a bench trial, the trial court held that Defendant was liable to Plaintiff for $91,103.47 plus interest from the date of judicial demand until paid and for all costs of court. In addition, the trial court denied Plaintiffs motion to assess fees seeking attorney fees and also denied Defendant’s motion for new trial. Defendant appeals.

DISCUSSION

Our review of the factual findings in this case is governed by the manifest error/clearly wrong standard of review. An appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is | conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly wrong. Rosell, supra; Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

In a cost-plus contract, the owner agrees to reimburse the contractor for the costs of material and labor and to pay a percentage of those costs as his profit. Burdette v. Drushell, 01-2494 (La.App. 1st Cir.12/20/02), 837 So.2d 54, writ denied, 03-0682 (La.5/16/03), 843 So.2d 1132. Under a cost-plus contract, the contractor may charge only those costs that are shown to be reasonable and proper. Ellis Millwork, Inc. v. Frees, Inc., 493 So.2d 696 (La.App. 2d Cir.1986). When the owner denies his indebtedness to the contractor, the contractor has the burden to itemize and prove his costs. Burdette, supra; Ellis, supra.

Discovery

Through a number of interrogatories, Defendant requested that, for each invoice, Plaintiff provide the dates of the services rendered, the type of factual service rendered, the person or entities who rendered the service and the contact information for that person or entity. Plaintiff responded that all relevant invoices containing the requested information were attached as exhibits to Plaintiffs previously filed motion for summary judgment. Plaintiff further asserted that he provided all materials, supervision and services for the project. In a motion to compel discovery, Defendant argued that these responses were insufficient. The trial court denied the motion and Defendant appealed that ruling.

The trial court has broad discretion in regulating pretrial discovery, and its decision will not be disturbed on appeal absent a clear abuse of that discretion. Bell v. Treasure Chest Casino, L.L.C., 06-1538 (La.2/22/07), 950 So.2d 654; Moak v. Illinois Central Railroad Company, 93-0783 (La.1/14/94), 631 So.2d 401; Wells v. State, Dept. of Public Safety & Corrections, 41,836 (La.App. 2d Cir.3/7/07), 954 So.2d 234. That discretion may be abused when the trial court denies a motion to compel seeking information that is properly discoverable, especially where the examination of the requested information may be the only means by which a party can defend the claims against it. Francois v. Norfolk Southern Corp., 01-1954 (La.App. 4th Cir.3/6/02), 812 So.2d 804.

In the case sub judice, Defendant not only received the requested information as an exhibit to Plaintiffs motion for summary judgment, but also could have obtained any further clarification through deposing Plaintiff or his employees. We do not find, therefore, that the trial court abused its discretion in denying Defendant’s motion to compel discovery.

| Jiearsay Evidence

Plaintiff supported his claim with copies of the invoices he received from the third parties that supplied the work and materials for the construction. During his testimony, Plaintiff went through the invoices and testified that they were related to the project for Defendant, that they were received and paid by his business and that he had sought reimbursement from Defendant. For some of the invoices, he gave a more detailed description of the related work. Plaintiffs bookkeeper testified that, when the company receives a bill from a third party, she enters the amount into the computer coded by category and then stamps the invoice as “entered” with the date. She then files the, bill until Plaintiff pays bills, at which time she stamps the bill as paid and writes- on the bill the number of the check used to pay it.

As mentioned above, Defendant filed a motion in limine to exclude these third party invoices as hearsay. The trial court denied the motion. Defendant argues on appeal that these invoices are inadmissible hearsay and do not fall under the business records exception to the hearsay rule.

La. C.E. art. 803(6), the business records exception to the hearsay rule, provides in pertinent part that:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business |7activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information .or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule.

Defendant argues that this language requires that the document must be created by the party introducing it and that a document merely received and processed by a business does not qualify.

Third party bills and invoices are admissible to prove the amount of damages. Ollis v. Miller, 39,087 (La.App. 2d Cir.10/29/04), 886 So.2d 1199; Fidele v. Cresent Ford Truck Sales, Inc., 00-1934 (La.App. 5th Cir.4/11/01), 786 So.2d 147; Carroll v. Coleman, 27,861 (La.App. 2d Cir.1/24/96), 666 So.2d 1264. Third party invoices that are received and maintained in the course of business are considered incorporated business records and are admissible under the business records exception to the hearsay rule under circumstances which demonstrate trustworthiness. Burdette, supra.

In Burdette, supra, the plaintiff contracted with the defendant on a cost-plus basis for construction services. He supported his testimony with invoices from third parties to prove amounts of cost he had incurred. Like the -case sub judice, the plaintiff testified as to the procedure his office used to process the invoices after receipt. After a thorough discussion, the court in Burdette, supra, rejected the exact argument made by Defendant in the case sub judice. That court determined that the wording of La. C.E. |Rart. 803(6) did not preclude the ⅛ troduction of incorporated business records originally generated by another business, if properly authenticated and determined to be trustworthy by the trial court. We agree with the reasoning of Burdette and find it applicable.

To the contrary, we find the case of Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122 (La.App. 2d Cir.1990), relied on by Defendant, to be factually distinguishable from the instant case. In Cole, the plaintiff had purchased a company to whom the defendant arguably had a debt. The plaintiff attempted to prove the debt with the records of the prior company. The plaintiff did not present any testimony reflecting firsthand knowledge of how the records were made or kept by the prior company. The court found that the plaintiff failed to present a qualified witness to establish the business records exception.

Here, Plaintiff did not seek to introduce the records of a third party, but, instead, argues that, through the processing and maintenance of those invoices within his business, they are his business records. Through the testimony of Plaintiff and his bookkeeper as to their process of receiving, entering, categorizing and charging invoices for services and material, Plaintiff showed that the third party invoices were incorporated into his business records. Under Burdette, supra, we find, therefore, that the trial court did not abuse its discretion in admitting the third party invoices.

Amount of Damages

Defendant further contends that the damage award of $91,130.47 was not supported by sufficient evidence. In particular, Defendant argues that | sthe invoice dated May 25, 2005, should be a cap on any amount he owed for work prior to that date. That invoice contained the phrase “labor, material equipment, taxes, and insurance for all work to date” under the heading “description.” Defendant further contends that the damages should be capped at $20,000 for worked performed after May 25, 2005, based on his conversation with Plaintiff estimating additional expenses.

The trial court found that “no ‘conversion’ to a ‘fixed’ nor ‘capped’ contract was ever manifested or perfected between the parties.”' 'Plaintiffs testimony was consistent that, after agreeing to charge the multiple additional projects on a cost-plus basis, he never agreed to a cap or fixed price. He further explained that the May 25, 2005 bill was prepared as an accommodation to Defendant to fax to his bank and that he never contemplated that it reflected a total amount on the work performed. He explained that, after the May 25, 2005 bill was generated, he continued to receive bills from subcontractors for work that was performed prior to May 25, 2005, and he charged Plaintiff for those amounts only after he received the subcontractors’ bills. We cannot say that it was manifest error for the trial court to find that the cost-plus contract was never converted, to a fixed or capped contract and to award Plaintiff, the costs reflected on all of the subcontractors’ invoices.

In addition, Defendant argues that Plaintiff failed to adequately prove specific charges. Particularly, he contends that Plaintiff failed to prove the amount of supervisory fees because the only evidence offered was Plaintiffs own testimony. Plaintiff testified that he divided up the costs for |ineach of his supervisors, such as their salary and vehicle expenses, among the various projects on which they were working. His supervisors did not document their time, so Plaintiff estimated the approximate proportion of each supervisor’s time spent on Defendant’s project. Defendant asserts that this testimony is subjective and, therefore, insufficient. Moreover, Defendant insists that he never contemplated that the oral contract entitled Plaintiff to charge for the cost for his supervisors plus 15 percent.

Defendant cites to the factually similar ease of East Contract Supply, Inc. v. Petite Paree Fashions, Inc., 250 So.2d 839 (La.App. 4th Cir.1971). In that case, the plaintiff-contractor sought to recover under a cost-plus contract supervisory fees for the time that both he and one of his employees spent on the project. The plaintiff argued that the defendant had agreed to the inclusion of such supervisory costs as evidenced by his payment of a prior invoice with a supervisory charge. The court noted that:

In interpreting contracts, where the issue is what are the terms of a verbal agreement, the fact that informed and experienced persons do not usually bind themselves to unjust and unreasonable obligations is to be considered in arriving at the intent of the parties.

Id., citing authority that is now La. C.C. arts. 2045, 2046 & 2049. The court went on to agree that certain items, including the supervision by the business owner, would normally be considered part of the general overhead and administrative expenses of the contractor to be covered out of the additional percentage added to the costs. The court adopted and quoted the reasoning of the trial court disallowing the charge for supervision performed by the contractor as not contemplated by the oral contract. The trial court |T allowed, however, and the appellate court agreed, that the supervision performed by the contractor’s employee was a cost that could be covered. The contractor had charged the defendant that employee’s full monthly salary, but the trial court reduced the charge by half as the record reflected that the employee only spent half his time on Defendant’s project.

In the case sub judice, Plaintiff testified that, while both he and his son performed supervisory work on Defendant’s project, he did not charge for the time of either. He charged Defendant only for the cost of his supervisors in proportion to the amount of their time spent on Defendant’s project. He repeatedly testified that it was in his interest to be fair to his customers. While the only evidence of the supervisory charges is Plaintiffs testimony that the charged amount was fair and reasonable, if believed, this testimony is sufficient. The trial court’s assessment of the credibility of a witness is subject to great deference. Rosell, supra. We find no manifest error in the trial court’s concluding that supervisory costs were contemplated in the cost-plus contract as a cost and that Plaintiff sufficiently proved those costs.

Defendant also advances much the same argument against the inclusion of insurance as an item of damages. For the same reasons set forth above, we find no manifest error in the trial court’s inclusion of insurance costs plus 15 percent in the award.

While Defendant attacks several aspects of Plaintiffs explanation for the damages award, we do not find that the trial court manifestly erred in accepting Plaintiffs testimony. Plaintiffs testimony, along with the [^submitted third party invoices, sufficiently support the award of the trial court.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed. Costs of appeal are assessed against Defendant, Ken Shaw.

AFFIRMED.

      . Defendants Cindy Shaw and Kenworths were dismissed by the trial court.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Mickel BRIEN, Plaintiff-Appellee v. LEON ANGEL CONSTRUCTORS, INC., and Bridgefield Casualty Insurance Company, Defendant-Appellant.
    No. 42,904-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2008.

      The Smith Law Office, L.L.C., by Linda Lea Smith, Eskridge E. Smith, Jr., Bossier City, for Appellant.
    Fischer & McMahon, by Mark Kenneth Manno, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   DREW, J.

pin this workers’ compensation case, defendants have appealed a judgment awarding supplemental earnings benefits and ordering defendants to pay a penalty and attorney fees to the claimant. The claimant has answered the appeal, seeking to increase amounts for the penalty and attorney fees, as well as seeking an award of attorney fees for defending this appeal.

We affirm the judgment and award additional attorney fees.

FACTS

Mickel Brien began working as a carpenter for Leon Angel Constructors in November of 2001 on the renovation of the DeSoto Parish courthouse. Originally from Houma, Brien had moved to Mansfield to take the job, and he lived on the construction site in his camper. Most of his job responsibilities involved installing drywall and acoustical ceiling tiles. Brien alleged that he was injured on June 24, 2002, while he and several co-workers moved a large cabinet. When another worker released one end of the cabinet as it was being lowered, Brien had to bear too much of the cabinet’s weight and he felt a snap in his lower back.

Brien continued working the day that he sustained his injury. He claimed that as his pain worsened, he reported his injury to his supervisor, Randall O’ Neal. Brien missed several days of work, then returned to full-time status.

Despite his injury, Brien did not seek medical treatment until two months later, when he was brought to DeSoto Regional Hospital on the afternoon of August 26, 2002. Dr. Donald Taylor examined Brien on |2September 4, 2002. Dr. Taylor’s diagnosis was myoligamentous strain to the lower back with possible lumbar disc involvement.

An MRI of Brien’s lumbar spine was done on September 16, 2002. The only disc abnormality noted by the radiologist was generalized disc bulging causing extra-dural defect on the thecal sac at L4-5.

Brien was fired on September 16, 2002, and he began receiving weekly indemnity benefits of $346.68 that month.

Dr. Carl Goodman, an orthopedic surgeon, began treating Brien on September 19, 2002. His impressions were lumbar strain and sprain, and degenerative lumbar disc disease with acute disc bulge. Physical therapy was recommended by Dr. Goodman, and he continued to recommend it after he treated Brien on November 5 and December 12. Dr. Goodman limited Brien to light duty work.

When Dr. Goodman examined Brien on January 22, 2003, his impressions were again lumbar strain and sprain and degenerative lumbar disc disease. Dr. Goodman believed that Brien had reached maximum medical improvement, but that he could only engage in light work activity. It was noted by Dr. Goodman that Brien wanted to see a neurosurgeon, but the doctor did not think this was necessary. However, later, in response to a March 3, 2003, letter from a nurse case manager, Dr. Goodman answered “No” when asked if he thought Brien was still at maximum medical | aimprovement, and answered “Yes” when asked if he thought that it was medically necessary for Brien to follow up with a neurosurgeon. Dr. Goodman referred Brien to Dr. David Cavanaugh for a neuro-surgical consultation, but after reviewing Brien’s records, Dr. Cavanaugh declined to see him.

In early April of 2003, Dr. Goodman noted that he did not think that pain management would provide any lasting results. But Dr. Taylor referred Brien to pain management on April 16, 2003. The next month, Dr. Goodman himself referred Brien to pain management with Dr. William Whyte.

Dr. Whyte met with Brien for the first time on June 10, 2003. Dr. Whyte’s impressions on this first visit were degenerative lumbar disc disease, very mild broad base disc protrusion that was not significant, and muscular spastic pain. Brien subsequently underwent three spinal treatments. Dr. Whyte thought on August 4, 2003, that Brien had reached maximum medical improvement. Evaluating Brien later that month, Dr. Whyte thought that Brien was possibly addicted to pain killers because his physical exam was unchanged from his earlier visit.

A Functional Capacity Examination (“FCE”) performed on Brien in May of 2003 showed that Brien could work full time in a job that required light-medium physical demand. Dr. Austin Gleason per-forméd an independent medical examination in September of 2003. Dr. Gleason concluded that Brien was at maximum medical improvement and had a 5% impairment to the total body from degenerative and symptomatic disc disease at L4-5. Dr. Gleason noted that the FCE showed Brien could return |4to work at a light-medium level, but that he had limited transferable skills other than construction and carpentry.

Dr. Whyte’s office evaluated Brien for the last time on January 21, 2004, when Brien told Dr. Whyte’s physician’s assistant that he still had lower back pain and that he disagreed'with the FCE that he could perform light duty work. Dr. Goodman examined Brien for the last time on June 29, 2004, when his impressions were mild midline disc protrusion at L4-5, and lumbar strain and sprain with persistent pain. Dr. Goodman told Brien to take over-the-counter medications as needed, and he again released Brien to light-medium to light work on a permanent basis.

Brien filed a claim for compensation in March of 2004 in which he asserted that he had not been provided with meaningful vocational rehabilitation, and was entitled to weekly indemnity benefits, medical treatment, penalties, and attorney fees.

In June of 2004, Dr. Whyte approved a sales job at Ivey Lumber in Mansfield. Dr. Goodman also approved the Ivey Lumber job. In October of 2004, Dr. Whyte approved a cashier position at a Wal-Mart in Mansfield. Dr. Goodman approved the Wal-Mart job the next month.

On November 16, 2004, the adjuster handling Brien’s claim terminated the payment of indemnity benefits. Subsequently, numerous pleadings were filed by both sides, including a claim by defendants that Brien had violated La. R.S. 23:1208 by making misrepresentations and false statements.

Following a trial on the merits, the Workers’ Compensation Judge (“WCJ”) found that: (1) Brien sustained a compen-sable injury to his lower |fiback on June 24, 2002; (2) Brien can work at a light to medium work level that does not involve repeated bending and twisting, and these limitations prevent him from returning to his pre-injury job; (3) modified duty jobs offered in Leesville or Shreveport by Angel Constructors do not meet the Banks v. Industrial Roofing & Sheet Metal Works, Inc., requirement that a suitable job be in Brien’s community or reasonable geographic region; (4) Brien was unable to earn at least 90% of his pre-injury wages and was entitled to supplemental earnings benefits of $872.47 per month from November 16, 2004, to October 16, 2006; (5) Brien was entitled to attorney fees of $7,500.00 and penalties of $2,000.00 for the wrongful termination of indemnity benefits in November of 2004; and (6) Brien had not violated La. R.S. 23:1208.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be | (¡manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

Compensable Injury

An employee is entitled to receive workers’ compensation benefits for personal injuries from an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An accident within the context of workers’ compensation is defined as an “actual, identifiable, precipitous event happening suddenly or violently ... and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).

A plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Player v. International Paper Co., 39,254 (La.App. 2d Cir.1/28/05), 892 So.2d 781. If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof. Player, supra. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.4/7/04), 870 So.2d 515.

Appellants first contend that the WCJ was clearly wrong in concluding that Brien had suffered a disabling injury while at work on June 24, 2002. The issue is not whether Brien was injured, as his medical records reveal that Brien had, among other back problems, muscle sprain and strain in his lower back. Rather, the issue is whether he sustained this |7injury while working. Appellants argue that because Brien did not seek medical attention until after he returned from a trip to Houma, he sustained his injury during this trip and not while working.

Angel Constructors’ payroll records show that Brien continued working on the day of his accident, as he worked overtime until the early evening. Brien left work after a few hours on Tuesday, June 25, and then he was off work over the next three days, because of his back injury. Brien was paid a full week’s worth of wages despite missing work for most of that week. Brien missed work the following Monday and Tuesday, July 1 and 2, but he was not compensated for this personal leave. Brien denied missing those two days for personal reasons.

Brien testified that he remained in his camper for eight days before returning to work. This is largely consistent with the payroll records, which show Brien as being away from work for seven full days, including the weekend. Brien denied that he worked on July 3 and 4, despite the payroll records showing the contrary. Brien did not work on Friday, July 5, but the reason for his absence was not indicated in the payroll records.

Brien began working normal 40-hour weeks beginning on Monday, July 8, but he claimed that he was allowed to work at his own pace, and that he continued to work at his own pace until he stopped working for Angel Constructors. It was explained by Brien that what he meant by working at his own pace was that he could sit down when he felt he needed to take a | Rbreak. Brien stated that he continued to work full-time after his injury because he had to earn a living.

Brien worked 30 minutes on Friday, August 23, then left for Houma. He returned to work on August 25, when he put in six hours. Brien went to the emergency room at DeSoto Parish Hospital the next day. The history that Brien gave at the hospital was he had hurt his back “one month ago” while lifting a heavy object, and that he could not sleep the prior night. His chief complaint was that his back hurt, and he reported having had sudden pain in his back two days earlier.

Brien testified that he went to the emergency room in August because he realized that Angel was not going to send him to a doctor. He was hurting when he returned from Houma, and he nearly passed out because he was weak from not eating. Brien denied that he had hurt his back while carrying 10-pound bags of shrimp during the Houma trip.

When he was treated by Dr. Taylor on September 4, 2002, Brien told Dr. Taylor that he felt a strain and pain in his lower back at the time of injury, but did not think anything of it. He also stated that the pain worsened the next day, improved a bit over the next several days, but then worsened until he had severe lower back pain.

It was claimed by Brien that he was fired on September 16 because he had seen a doctor after Leon Angel had told him not to see one. Leon Angel countered that he learned that Brien had threatened to turn Angel Constructors in to the Department of Labor if he did not receive extra pay, 19so he confronted Brien and said that his company would not be held ransom and, regardless, he had no concerns about any violations. Angel recalled that Brien then said he no longer had interest in working for the company. The written dismissal of Brien does not mention this incident, but it states that Angel had not received a medical excuse for Brien’s absences since August 26, 2002. We note that on August 10, 2002, O’Neal had written to Brien that he was being given an increase in pay of 50 cents per hour, and in return was asked to have a better attitude toward the company and increased responsibility.

Three days after being fired, Brien was examined by Dr. Goodman. He told Dr. Goodman that he had hurt his back at work on June 24, 2002, had nonetheless continued working that day, but had experienced increased back pain the next morning. After he had some improvement with the passage of eight days, he returned to work. Brien also told Dr. Goodman that after he came back from Houma, he had increased back pain. Brien described his pain to Dr. Goodman as being primarily in his back with bilateral thigh pain.

Leon Angel testified that the first time he heard that Brien was injured was when O’Neal told him that Brien showed up on a Monday morning complaining of an injury which he had received over the weekend and wanting to know if he could go to the emergency room. Pursuant to Angel’s instructions, O’Neal wrote a memo on August 26, 2002, about the injury. O’Neal wrote that on two occasions during the prior two weeks, Brien had complained that his back stiffened, but he was able to work through it, then on that Saturday morning, Brien complained that the long drive from |inHouma had caused his back to stiffen, and later that Saturday, tingling sensations developed in his lower back, and he has had back pain ever since.

Angel Constructors’ own report of injury form, which was completed by O’Neal, was dated June 27, 2002. It states that the accident took place on the morning of June 24, and that the employer knew of the injury on that date.

Based upon our review of this record, we cannot conclude that the WCJ was clearly wrong in finding that Brien had sustained a compensable injury on June 24, 2002.

Supplemental Earnings Benefits

Supplemental Earnings Benefits (SEB) are awarded when a work-related injury prevents the employee from earning 90% or more of his pre-injury wages. La. R.S. 23:1221(3)(a). The employee has the initial burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation law is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). See Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, and Kahlden v. Horseshoe Entertainment, 30,277 (La.App. 2d Cir.2/25/98), 709 So.2d 873.

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or establish the employee’s earning capacity, must prove, by a preponderance of the ^evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 28:1221(3)(c)(i); Daigle, supra. Actual job placement is not required. Banks, supra.

Appellants contend that the WCJ erred in awarding SEB to Brien. They argue that the WCJ failed to consider Brien’s actual wage earning capacity. They also argue that the positions offered with Angel Constructors were within Brien’s reasonable geographic area. In examining these arguments, it is helpful to consider the limitations imposed by Brien’s physicians, as well as efforts to provide Brien with vocational rehabilitation.

Brien’s medical records demonstrate that as early as November 5, 2002, Dr. Goodman limited Brien to light duty work. When Dr. Goodman treated Brien for the last time on June 29, 2004, he released Brien to light-medium to light work on a permanent basis.

The FCE from May of 2003 showed that Brien could work full time in a job having light-medium physical demands. It was noted in the FCE report that based upon Brien’s description of the physical demands of his pre-injury job, that job fell into the medium-heavy physical demand level category and he would not be able to return to that line of work. However, it was also noted that his impairment was not severe and it would not prevent him from returning to some form of gainful work. Dr. Goodman remarked on June 6, 2003, that he agreed with the findings of the FCE that Brien could do light-medium work. Based upon the FCE findings, Dr. Gleason believed that Brien could return to work at a light-medium level, 112but that he had limited transferable skills other than in construction and carpentry.

Gisclair and Associates was hired to provide vocational rehabilitation services to Brien in October of 2002. The file was assigned to Terry Finley, a vocational rehabilitation counselor, to perform a job analysis of Brien’s job at the time of his injury. Gisclair and Associates usually begins the vocational rehabilitation services process with a job analysis because the initial goal is to place the injured worker in the same job with his same employer. At the time, Finley sent the file to Jewel Jourdan, a nurse case manager, because the case was not vocationally ready.

In November of 2002, Finley contacted Angel to learn more about Brien’s job at the time of injury. The next month, Finley visited the courthouse construction site and spoke with O’Neal, who told Finley that Brien had been working as a carpenter and with drywall. Because Brien had been required to lift up to 100 pounds, Finley thought the job was in the overall very heavy-duty classification. Finley sent the job analysis to Angel for his review, and Angel responded that he would make changes to the job to accommodate Brien. Finley then changed the job demand classification from heavy to light duty based upon Angel’s representation that he would allow Brien to perform work in the light duty range.

A job analysis with an overall light duty classification was submitted to Dr. Goodman for his approval as treating physician. Dr. Goodman signed 113it on December 18, 2002, but added that there was to be no repeated bending, twisting, or lifting over 20 pounds. Angel agreed that the modified job for Brien would comply with these limitations imposed by Dr. Goodman. Nevertheless, when Brien visited Dr. Goodman on January 22, 2003, he told Dr. Goodman that the job description was for a carpenter and drywall worker and was not accurate, and that the job was not light duty. Dr. Goodman agreed that Brien could not return to that type of work. Several days later, Dr. Goodman wrote a letter addressed to whom it may concern that stated he wanted to confirm that Brien was unable to do the modified job because Brien said the job was more than light duty. Finley admitted that he did not know of many light duty construction jobs, and that he had not spoken with Brien. Having moved to a new company, Finley no longer worked on the file after January of 2003.

Tommie Spivey, a new vocational rehabilitation counselor, began working on Brien’s file in July of 2003 under the supervision of Bob Gisclair. After meeting with Angel at his office in September of 2003 for a job analysis conference, she completed a job analysis for a modified construction worker. After notifying Brien’s attorney, Spivey submitted this job analysis to Dr. Whyte for approval. She submitted it to Dr. Whyte because she thought he was the treating physician at the time; it was not |14submitted to Dr. Goodman. Dr. Whyte approved the job analysis on November 5, 2003.

Brien’s attorney was notified on January 14, 2004, that Dr. Whyte had approved the position at Angel, and that Brien was to report to work in Shreveport on January 30. In a letter dated January 26, 2004, Brien’s attorney wrote to the insurer that Brien would not be able to report to the Angel job offered in Shreveport because he did not have a car.

Interestingly, Finley did not know what to make of Spivey’s job analysis. He remarked that his job analysis was specific to Brien, whereas what Spivey produced was a generic job analysis for a general construction worker doing light duty work. He added that he would not take a general job analysis to a doctor for approval. Finley thought that Spivey’s work came out of the Dictionary of Occupational Titles (“DOT”). Spivey testified that the information for her job analysis basically came from her conversation with Angel, but she also obtained information from looking at the DOT.

For her part, Spivey did not think that Finley’s job analysis was an actual job analysis because it was titled as a job quest, and she had never done a job quest before. Gisclair remarked that a job quest is essentially another name for a job analysis.

Once the issue of being unable to travel to Shreveport was raised, the decision was made to implement full vocational rehabilitation services in Mansfield, and the case was transferred to another vocational rehabilitation 11scounselor, Mary Walker, who met with Brien in March of 2004. Walker completed an initial vocational assessment, gave an achievement test, scored the test, prepared the transferable skills, and then met again with Brien to develop a vocational plan. On the achievement test, Brien scored at the high school level in reading and at the 6th grade level in spelling and arithmetic. Brien did not tell Walker that he had a GED, which would have been important to know because it qualified him for jobs involving less manual labor; Walker did not look for those types of jobs. Brien and Walker disagreed about whether Brien should mention his physical limits on job applications.

Limiting her search to the Mansfield area, Walker did not identify any jobs for Brien in the construction field. At the time,.Brien had remained in Mansfield before moving back to Houma in 2005. Walker found two jobs in Mansfield. One was a sales position at Ivey Lumber, and the other was a cashier position at Wal-Mart. Drs. Goodman and Whyte both approved the positions. These were the only positions that Walker found for Brien. Walker closed her file in June of 2005.

Brien established that he was unable to earn 90% of his pre-injury wages. The only jobs that defendants were able to find for Brien were the two jobs with Angel Contractors, the Wal-Mart job, and the Ivey Lumber job. Neither one of the latter two positions paid more than $5.45 per hour. Brien was earning $13.00 per hour at the time of his injury.

LfiThe first job offered by Angel, which was presumably in Leesville, was ultimately rejected by Dr. Goodman after he initially approved it. The second job was not even presented to Dr. Goodman for approval. Dr. Whyte approved the second job after being presented with a job analysis that Finley-did not think was even specific to Brien. Nevertheless, even if the two jobs offered by Angel Contractors were suitable for Brien, the WCJ properly rejected them as being outside of Brien’s geographic region.

Brien lacked reliable transportation to drive to and from Shreveport or Leesville, which are both more than 30 miles from Mansfield. He testified that he had a 1992 Bonneville that was not in good working order and was not reliable enough to make the trip on a regular basis. Walker asserted that Brien told her that his car had been repaired and he could frequently make the Shreveport drive. Brien denied saying this. The poor condition of Brien’s car was corroborated by his former girlfriend’s son, Jesse Hayes, who stated that Brien worked on his mother’s Camaro because Brien needed her car running in order to get around. Hayes added that he believed that Brien’s own car always had problems.

Walker limited her search to a 30 mile radius of Mansfield because Brien had lived and worked in Mansfield at the time of injury. Walker commonly used a standard 30-35 mile radius unless the worker drove farther to his pre-injury job. Spi-vey had no opinion about whether Shreveport is outside the geographic region of Mansfield, and she was not aware of Brien’s transportation situation.

| ^Furthermore, Brien’s actual wage earning capacity was apparent from the record and does not diminish his entitlement to SEB. At the time of his injury, Brien was a 45-year-old Navy veteran who had a GED and who had mostly worked construction-type jobs. He did not have many job options in the Mansfield area, as evidenced by Walker only coming up with two entry-level positions for Brien.

Brien has not remained housebound since leaving employment with Angel Constructors. He returned to Houma in April of 2005. Shortly thereafter, he met a doctor from New Orleans, Dr. William Bertrand, who had a camp in Dulac. Brien would do occasional odd jobs for Dr. Bertrand, such as watching his camp, cutting the grass, and hauling large wood figures belonging to Dr. Bertrand from New Orleans to storage in Houma. Brien also cleaned the figures. In return for his service, Brien was allowed to stay at the camp, and was provided with the use of a 1993 Ford Explorer, gas, and food. Dr. Bertrand gave him approximately $2500 over ten months, but Brien had to give some of this money to others as payment for repairs.

Brien has occasionally hunted squirrels and deer, and ridden on an ATV. He has also gone shrimping and picked up pecans. Brien admits that - he has worked on his own car and his girlfriend’s car, but added that it did not bother him if he only did it occasionally. He has been able to cut two acres of grass using a riding lawn mower and his sister’s yard with a self-propelled push mower because he worked at his own pace. Brien allows that he can bend over, but that he cannot do it constantly.

hsln October of 2004, Brien attempted to get a job walking horses for a trainer at Louisiana Downs. Brien stated that he attempted to do it for one day, which was captured on video by investigators hired by defendants, but he did not get the job because he was unable to do it. Brien also supervised the building of a frame for a slab for his sister’s trailer over a period of four days. During this supervision, Brien moved a few pieces of lumber, and occasionally hammered and used a shovel.

Brien is not crippled, but primarily because of his documented physical and intelligence limits, he has been unable to find work paying 90% or more of his pre-injury wages. The WCJ accounted for Brien’s actual wage earning capacity when factoring the amount of SEB to which Brien is entitled. Based upon this record, we cannot conclude that the WCJ was manifestly erroneous in finding that Brien was entitled to SEB in the amount of $872.47 per month from November 16, 2004, to October 16, 2006.

False Statements and Misrepresentations

Appellants next complain that the WCJ erred in denying their claim that Brien had violated La. R.S. 23:1208, which provides, in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
⅜ * * ⅜ #
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

liflThis statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation, (2) it is -willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Co., 94-2708 (La.9/05/95), 660 So.2d 7.

Whether a workers’ compensation claimant has forfeited his right to benefits by making a false statement for the purpose of obtaining benefits is a question of fact that will not be disturbed on appeal absent manifest error. Bossier Electric v. Cubley, 35,852 (La.App. 2d Cir.6/14/02), 821 So.2d 685. Statutory forfeiture must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214.

Appellants introduced several video tapes documenting Brien’s activities in December of 2002, February and August of 2003, and June and October of 2004. Among the activities shown on the tapes are Brien walking and bending over, washing his car, working on his car, entering and exiting his car and businesses, and walking horses. The adjuster sent some of the video footage to Dr. Goodman for his review.

After comparing Brien’s deposition and trial testimony to the video surveillance, photos, and testimony of witnesses, the WCJ noted that he had concerns about Brien’s representations about his physical limits, and that it was a very difficult and close decision. Nevertheless, the court found that Brien’s statements that were contradicted by the video surveillance were inconsequential. Moreover, the court noted that even after Dr. Goodman viewed some of the video and found inconsistencies between the activities depicted on the videos and how Brien had presented himself when being treated, Dr. Goodman still did not think that Brien could perform his old | ¡>njob, and he still limited Brien to light duty work based upon his objective findings and Brien’s subjective complaints of pain. The WCJ was not manifestly erroneous in finding that Brien had not violated La. R.S. 23:1208.

Penalty and Attorney Fees

Appellants assert that the WCJ erred in assessing a penalty of $2,000.00 and awarding attorney fees of $7,500.00 because they stopped paying benefits on November 16, 2004. Brien has answered the appeal, seeking an increase in the amount assessed as a penalty and the amount awarded as attorney fees, as well as attorney fees for responding to this appeal.

Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Young v. Christus Schumpert Medical Center, 39,593 (La.App. 2d Cir.5/11/05), 902 So.2d 1180; Lee v. Schumpert, 36,733 (La.App. 2d Cir.1/29/03), 836 So.2d 1214. Nevertheless, a WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La.App. 2d Cir.6/24/98), 715 So.2d 112.

In their brief to this court, appellants argue that “[p]ursuant to La. R.S. 23:12012, attorney fees and penalties áre not owed when the claim is reasonably controverted.” That statute, which was repealed in 2003, provided for an assessment of attorney fees, but not a penalty, when an employer or insurer discontinued payment of claims due and the discontinuance was arbitrary, capricious, or without probable cause. The substance of La. R.S. 23:1201.2 now appears in La. R.S. 23:1201(1). ^[¿jSubsection (I), which was added in 2003 and thus in effect at the time the wage benefits were discontinued, states:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims....

The difference between “arbitrary, capricious, or without probable cause” and “reasonably controverted” in the context of La. R.S. 23:1201 has been explained:

Unreasonably controverting a claim ... requires action of a less egregious nature than that required for arbitrary and capricious behavior. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern.

Brown v. Texas-LA Cartage Inc., 98-1063 (La.12/01/98), 721 So.2d 885, 890 (citations omitted).

Brien’s file was transferred to adjuster Philip Moory in November of 2004. Moo-ry made the decision to terminate Brien’s indemnity benefits because he thought Brien could return to his pre-injury job and Angel had offered Brien a supervisor’s position in Leesville in 2003 and what Moo-ry termed a “doing nothing” job in 2004. Moory did not speak with any vocational rehabilitation counselor before terminating the benefits.

Most notably, Moory did not agree that Brien had been restricted from returning to the same job that he had before he was hurt. When asked what his understanding of Brien’s restriction was, Moory replied that he thought Brien was “probably restricted in lifting things in excess of 2 or 300 Impounds.” Moory added that he based his understanding upon a physical assessment of Brien’s size and stature. Leaving no doubt as to his opinion about Brien’s restrictions, Moory stated that Brien could lift enough to do his old job and could “definitely” do his old job. This is contradicted by the medical evidence. Without question, the decision to terminate the indemnity benefits made by Moory was arbitrary, capricious, and without probable cause. The WCJ did not abuse his discretion in deciding to assess a penalty and award attorney fees.

Brien has answered the appeal seeking a modification of the judgment to increase the penalty and attorney fees awarded by the trial court, as well as an award of attorney fees for responding to this appeal. We discern no abuse of the trial court’s discretion in setting the penalty at $2,000.00 and attorney fees at $7,500.00. However, we award additional attorney fees of $1,000.00 to Brien for successfully defending this appeal.

CONCLUSION

With appellants to bear the costs of this appeal, the judgment is AFFIRMED. Additional attorney fees of $1,000.00 are awarded to claimant.

      . It was noted that Brien had an appointment with another physician later in the month, but Brien felt that he could not wait because of the pain and discomfort in his lower back.

      . Dr. Goodman noted that an MRI showed multi-level degenerative disc disease without significant stenosis or nerve root involvement, and possible acute disc protrusion at L3-4.

      . The records show that Brien spent two hours on June 27 doing a hardware plan check, and one hour on June 28 working on his trailer.

      . Brien claimed that Leon Angel told him that he would be paid for the entire week if he did not go to the doctor.

      . September 16 was the date of his MRI.

      . Finley explained that the nurse case manager gets medical care for a claimant to bring him to a point where he can begin vocational rehabilitation.

      . Finley did not see this modified job performed.

      . Angel testified that he told the rehabilitation counselors that he would provide the necessary special conditions, including having a laborer work with Brien so that he would not strain himself.

      . Spivey never spoke with Brien or knew that he had been fired from Angel Constructors. She also did not visit the construction site with Angel.

      . She was the only counselor to have contact with Brien.

      . Gisclair explained that this sort of testing was unnecessary until it became clear that Brien was not going to return to Angel Constructors.

      .Walker was also aware that the most recent job offer with Angel Constructors had been turned down because it was too far way.


author: LOLLEY, J.

text:
    MOR-TEM RISK MANAGEMENT SERVICES, INC., Plaintiff-Appellant, v. Michael SHORE, Defendant-Appellee.
    No. 43,169-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Lee J. Phillips, for Appellant.
    Hudson, Potts & Bernstein, by Brian P. Bowes, Monroe, Travis Oliver, IV, for Ap-pellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

| ¶ Mor-Tem Risk Management Services, Inc. (“Mor-Tem”) appeals two judgments by the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, in favor of Michael Shore, which judgments granted Shore’s motion for summary judgment/motion for sanctions, respectively. For the following reasons, we affirm the trial court’s judgments.

Facts

Mor-Tem is an insurance adjusting company and third party administrator for workers’ compensation claims. Michael Shore was Mor-Tem’s claims manager in its Monroe, Louisiana office. On June 28, 2004, Mor-Tem terminated Shore’s employment, and afterward, several of Mor-Tem’s clients hired Shore to handle their insurance claims.

Subsequently, Mor-Tem filed suit against Shore, claiming that he had intentionally interfered with Mor-Tem’s contracts with its clients. Additionally, Mor-Tem claimed that Shore had taken property, primarily a table, from the building where the business had been located, and it sought damages for wrongful conversion of property. Shore answered and subsequently filed a motion for summary judgment in connection with the two claims. The trial court partially granted his motion and dismissed the intentional interference with contracts claim — that judgment is not the subject of this appeal. However, the trial court denied the summary judgment in connection with the conversion claim. Later, Shore filed a Motion for Summary Judgment/Motion for Sanctions, arguing that Mor-Tem was unable to present any evidence in support of its conversion claim. After the trial court’s refusal to allow Mor-Tem’s affidavit in support of its | ¡«opposition to the motion, the trial court granted Shore’s motion for summary judgment and dismissed Mor-Tem’s claims against Shore. As to Shore’s motion for sanctions, Mor-Tem was ordered to pay Shore’s “reasonable attorneys fees” in the amount of $10,500.00 plus the costs of the proceedings. Two separate judgments were entered, and those are the subject of Mor-Tem’s appeal.

Discussion

On appeal, Mor-Tem raises four assignments of error, the first two of which are related. First, Mor-Tem argues that the trial court erred in refusing to allow its filing of an affidavit in opposition to Shore’s motion for summary judgment. Second, Mor-Tem maintains that the trial court erred in granting Shore’s motion for summary judgment, because, based on the opposing affidavit, genuine issues of material fact existed. We disagree with both assertions.

Here, according to Mor-Tem, the following events occurred in relation to the subject affidavit:

• April 2, 2007: Mor-Tem filed an opposition to Shore’s motion for summary judgment, claiming to have attached the unsigned, un-notarized affidavit of Vanessa James. The hearing on Shore’s motion for summary judgment was scheduled for April 12, 2007;
• April 4, 2007: Mor-Tem supplied Shore’s attorney with a fax copy of James’ signed and notarized affidavit; and,
• April 9, 2007: Mor-Tem filed a motion to substitute the unsigned affidavit with the signed affidavit, which motion was denied by the trial court with a notation by the trial court that there was no affidavit in the record.

IsNotably, at the hearing on Mor-Tem’s motion for new trial, the trial court described the proceedings surrounding the affidavit as follows:

Now the affidavit of Vanessa James was not submitted with the original motion for summary judgment in opposition. It was not in your opposition. It was not submitted. It wasn’t presented to the Court until the day of the hearing and then it wasn’t even notarized.

Mor-Tem argues that the affidavit attests to matters at the heart of the proceedings and justice was not served without its consideration. Mor-Tem states that the trial court’s refusal to consider the affidavit was a “hyper-technical” application of the rule and such application is contrary to the liberal construction mandated by La. C.C.P. art. 5051, which states that “The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.”

Pursuant to La. C.C.P. art. 966 B, “[t]he adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary.” Here, the trial court was within its discretion to not allow the untimely filing of the affidavit. We do not consider it “hyper-technical” for the trial court to strictly adhere to the article. As noted by the trial court, it does not appear that the unverified version of the affidavit was filed with Mor-Tem’s opposition memorandum, despite Mor-Tem’s contention otherwise. It appears that the affidavit was presented to the trial court at' the hearing on |4the motion for summary judgment and then only became part of the record as a filing when Mor-Tem later filed its motion for new trial after the trial court granted Shore’s motion for summary judgment.

However, although the trial court did not allow the late-filing of the affidavit, it is clear from the oral reasons for judgment, that the affidavit was considered to some extent, even if it was insufficient to change the trial court’s ruling. Likewise, in our de novo review of the record, even considering the contents of the affidavit, we cannot see how it serves to benefit Mor-Tem’s opposition to Shore’s motion for summary judgment. That is, we fail to see any evidentiary value to the affidavit in favor of Mor-Tem.

In her affidavit, James averred that she was employed by Hammerman & Gainer, which had purchased Mor-Tem in 2002. According to James, the corresponding purchase agreement purportedly stated that Mor-Tem was in possession of certain items, and that Hammerman & Gainer became the owner of those items by virtue of its purchase of Mor-Tem. However, Shore testified in his deposition that the table, which is the subject of the conversion lawsuit and the motion for summary judgment, was owned by him prior to Mor-Tem purchasing his business. Notably, the building in which Mor-Tem conducted its business belonged to Shore, and Mor-Tem leased it from Shore. There is nothing in the record, including James’ affidavit, establishing conclusively that Mor-Tem ever owned the table in question, because the affidavit only considers the purchase of the business by Hammer-man & Gainer-there is no evidence that Mor-Tem purchased the | stable and other items from Shore when it originally purchased his business. This is the missing link. Even considering James’ affidavit, we cannot say that Mor-Tem ever established that it was the owner of the table or any other specific items that it claimed Shore had converted. Mor-Tem was unable to provide any evidence of ownership of any of the movables it claims that he wrongfully converted. In light of Mor-Tem’s failure to provide any documentation that it ever owned the items in question, and Shore’s assertion that he indeed owned it, the trial court properly granted motion for summary judgment in his favor. Thus, the trial court was not in error in granting Shore’s motion for summary judgment notwithstanding the affidavit.

Mor-Tem’s last two assignments of error are related to the award of sanctions. In his motion for sanctions, Shore asserted entitlement to sanctions because Mor-Tem had filed a petition against him which was not warranted by the law or the facts. As stated, the trial court granted the motion and awarded Shore $10,500.00 in attorney fees and all costs of the proceeding. On appeal, Mor-Tem argues that the trial court erred in granting the motion for sanctions, and, in the alternative, that the award was excessive.

Louisiana C.C.P. art. 863 provides, in part:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to | ficause unnecessary delay or needless increase in the cost of litigation.
⅝ ⅝ ⅜ ⅝
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.

Appellate review of the decision to impose sanctions is under the manifest error/clearly wrong standard of review. Jones v. Bethard, 39,575 (La.App.2d Cir.04/13/05), 900 So.2d 1081, writ denied, 2005-1519 (La.12/16/05), 917 So.2d 1115; Parker v. Progressive Ins. Co., 31,147 (La.App.2d Cir.10/28/98), 720 So.2d 408. The determination of the type and amount of the sanction is reviewed under the abuse of discretion standard of review. Id.

Article 863 is intended only for exceptional circumstances and is not to be used simply because parties disagree as to the correct resolution of a legal matter. Caldwell v. Griggs, 40,838 (La.App.2d Cir.03/08/06), 924 So.2d 464. The slightest justification for the exercise of a legal right precludes sanctions. Only when the evidence is clear that there is no justification for the legal right exercised should sanctions be considered. Any lesser standard would serve to seriously impair the rights of the party as a litigant. Id. The obligation imposed upon litigants and their counsel who|7sign a pleading is to make an objectively reasonable inquiry into the facts and the law. Subjective good faith will not satisfy the duty of reasonable inquiry. Miller v. Miller, 35,358 (La.App.2d Cir.12/05/01), 803 So.2d 292.

Here, the trial court’s award of sanctions was based primarily on Mor-Tem’s claim of intentional interference with a contract against Shore. As stated by the trial court, despite Mor-Tem’s argument that it had a justifiable claim against Shore, this claim was without any merit and “caused a needless additional expenditure of resources by both parties.” We agree.

The cause of action for intentional inference with a contract has been very limited in its application. In 9 to 5 Fashions Inc. v. Spurney, 538 So.2d 228 (La.1989), the Louisiana Supreme Court recognized a narrowly defined cause of action for the breach of duty by a corporate officer to refrain from intentionally and unjustifiably interfering with a contractual relationship between the officer’s corporate employer and the particular plaintiff. The 9 to 5 Fashions court defined the elements which must be established to sustain a claim for intentional interference with a contract, those being:

1) a contract or legally protected interest must exist between the plaintiff and the corporate defendant;
2) the corporate actor must know of the contract;
3) the officer must intentionally induce or cause the corporation to breach the contract;
4) there must be an absence of justification on the. part of the corporate actor; and
|s5) the breach of contract must cause damages to plaintiff.

This court has limited the application of 9 to 5 Fashions, supra, to its facts. Healthcare Management Services, Inc. v. Vantage Healthplan, Inc., 32,523 (La.App.2d Cir.12/08/99), 748 So.2d 580. Here, considering the facts at hand, there was a complete misapplication of the 9 to 5 Fashions legal tenet. First, although Mor-Tem argues that Shore was like an officer, he was not. Shore was only an employee. Moreover, considering how narrowly this cause of action must be construed, we cannot see any justification in bringing it against Shore. The legal theory allowed under 9 to 5 Fashions envisions a scenario where the corporate officer (again, a position which Shore did not hold), acting on behalf of his corporation induces it to breach a contract with a third person (i.e. “the corporate defendant”). The facts of this case do not meet those required elements. Even if the facts of this case aligned with the narrow cause of action attempted here, Mor-Tem was never able to conclusively provide solid facts, let alone evidence, to indicate specific contracts Shore caused to be breached. Nor could Mor-Tem provide any evidence to support any of the other necessary factors under 9 to 5 Fashions, yet, Mor-Tem continued to pursue its claim against Shore until the trial court dismissed the claim. Finally, Shore stated in his deposition that he never made contact with any of the clients until after his termination from Mor-Tem, yet Mor-Tem continued to pursue the claim against him.

Additionally, and as discussed herein, neither did the conversion claim have merit, considering that Mor-Tem in no way could prove its [¡¡ownership of the table. After Shore testified in his deposition that he owned the table, it was incumbent upon Mor-Tem to prove that it owned the table by virtue of its purchase of Shore’s business — this was never done. We question why Mor-Tem never produced evidence of its actual ownership of the table from the beginning of the litigation. Apparently, Mor-Tem did not have that proof, yet it continued to pursue a meritless claim against Shore.

When we consider that Mor-Tem’s claims were not supported by the law or the facts, we cannot help but conclude that they were pursued against Shore as retribution for his later conducting business with former Mor-Tem clients. Its claims were not simply weak — there was no color-able action against Shore. Had the claims been simply weak, an imposition of sanctions would have been erroneous; however, considering that Mor-Tem’s action against Short was not even arguably supported by the law or the evidence, we see no abuse of discretion.

Further, we note that the ill motives of Mor-Tem in bringing suit against Shore is further evidenced in the unprofessional action of noticing Shore’s deposition eight days following the filing of the petition— before his time delay to answer the petition had run. Mor-Tem sought to take Shore’s deposition in New Orleans, despite the fact that the lawsuit was filed in Monroe, Shore was located in Monroe, and the involved attorneys were involved in north Louisiana (Monroe and Shreveport, precisely). Even though we are not aware of any procedural rule preventing such a legal |inmaneuver, we cannot help but question the professionalism of such a tactic. Such appears to support Shore’s contention that Mor-Tem’s lawsuit was primarily intended to harass him for doing business with former Mor-Tem clients.

Finally, we cannot help but consider that during the course of this litigation the trial court was in the best position to observe the proceedings and regard the tenor of same. In this case, from simply reading the cold record, it is apparent that the trial court considered Mor-Tem’s claims against Shore as frivolous. Thus, considering the totality of the record before us, we cannot say that the trial court abused its discretion in imposing sanctions against Mor-Tem.

In calculating the amount of sanctions, the trial court awarded Shore his reasonable attorney fees in the amount of $10,500.00 (70 hours of legal work at the rate of $150.00 per hour). Although on its face that amount appears to be high, we note that this litigation commenced in November 2004. It addressed two separate legal claims, each of which Shore ultimately moved to have dismissed through summary judgment — these motions involved court appearances. From the very outset of the litigation, Shore’s attorney had to take immediate action. Not only did Shore’s attorney have to address the petition for the preparation of an answer, he had to file a motion for protective order regarding Shore’s deposition that had been unilaterally scheduled by Mor-Tem’s trial counsel in New Orleans. The parties also conducted other discovery, and Shore’s attorney had to |17move to compel Mor-Tem to respond to his discovery request. Thus, considering the amount of legal work it took to defend a claim that was ultimately only over a table, we do not see an abuse of discretion by the trial court regarding the amount of the award.

Conclusion

For the foregoing reasons, the judgments in favor of Michael Shore and against Mor-Tem Risk Management Services, Inc. are hereby affirmed. All costs of these proceedings are assessed to Mor-Tem.

AFFIRMED.

      . Obviously Mor-Tem did not require Shore to execute a non-compete agreement, which feasibly could have prevented exactly the scenario that occurred.

      . Mor-Tem had requested an expedited trial setting and only a ten day time limit for Shore's answer.

      . We note, additionally, that following the award of sanctions, Mor-Tem then filed a motion for new trial, although no new evidence existed, which necessitated further preparation by Shore's legal counsel and attendance at a court hearing. Finally, Mor-Tem appealed the dismissal of the conversion claim regarding the conference table, which resulted in additional legal fees to Shore.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Randall Keith MYERS, Appellant.
    No. 43,105-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Louisiana Appellate Project by Edward K. Bauman, for Appellant.
    Don M. Burkett, District Attorney, Michael E. Daniel, Assistant District Attorney, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

hThe defendant, Randall Keith Myers, was charged with three counts of obscenity and three counts of indecent behavior with a juvenile. The defendant pled guilty to three counts of obscenity. The trial court sentenced him to two years at hard labor and imposed a fine of $1,000.00 on each count, with all three sentences to run concurrently with credit for time served. The defendant now appeals. Finding that the trial court failed to inform the defendant of the right against self-incrimination prior to accepting the guilty plea, we set aside the conviction, vacate the sentence, and remand the case to the district court for further proceedings.

FACTS

On October 6, 2006, the defendant was charged with three counts of obscenity, a violation of La. R.S. 14:106, and three counts of indecent behavior with a juvenile, a violation of La. R.S. 14:81. All six counts arose out of the defendant’s conduct on August 12, 2006, wherein the defendant was witnessed removing all of his clothes and masturbating in the presence of three children and two adult females at Stonewall Park in DeSoto Parish.

On June 18, 2007, the defendant entered a plea of guilty to three counts of obscenity. In exchange, the state agreed to the preparation of a pre-sentence investigation, to concurrent sentences, and to nolle pros the additional charges of indecent behavior with a juvenile. In taking the plea, the trial court advised the defendant of his right to a trial by jury and of his right to confront and cross-examine witnesses against him. The trial court did not advise the defendant of his right against self-incrimination.

| p.The defendant’s sentencing took place on July 30, 2007. Prior to imposing the defendant’s sentences, the trial court indicated that it had reviewed the pre-sen-tence investigation as well as the psychological reports prepared by two separate doctors in response to the defendant’s pre-conviction request for a sanity commission. After considering all the factors discussed in those reports, the trial court sentenced the defendant to two years’ imprisonment at hard labor on each count, with all three sentences to be served concurrently with credit for time served. The defendant was also ordered to pay a $1,000.00 fine on each count. The defendant filed a motion to reconsider sentence which was denied on August 3, 2007.

DISCUSSION

The defendant asserts that the trial court erred in failing to inform him of all of his constitutional rights, namely, his privilege against self-incrimination. For this reason, he contends that his convictions must be reversed.

The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Garth, 622 So.2d 1189 (La.App. 2d Cir.1993). A valid guilty plea requires a showing that the defendant was advised of his constitutional rights, including his privilege against compulsory self-incrimination, his right to a trial by jury, and his right to confront his accusers. There must also be an express and knowing waiver of those rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Indeed, an express and knowing waiver of those rights must appear on the 13record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992).

Furthermore, the trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980). In fact, appellate courts are mandated to indulge every reasonable presumption against waiver of these fundamental rights. State v. Dickson, 505 So.2d 758 (La.App. 2d Cir.1987).

In this case, the defendant concedes that the trial court informed him of his right to a jury trial and his right to confront and cross-examine the witness against him. However, the defendant alleges that the trial court failed to inform him of his privilege against self-incrimination.

The minute entry for June 18, 2007, reflecting the taking of the defendant’s guilty plea states:

The Court informed the Defendant of his CONSTITUTIONAL RIGHTS as per Boykin v. Alabama (See Court Reporter’s Transcript).

The transcript indicates a colloquy during which the trial judge extensively questioned the defendant. In doing so, the trial judge determined that the defendant had an eighth grade education, had limited reading and writing skills, and that his financial affairs were handled in part by his sister. The trial judge also learned that the defendant was living with his mother at the time the incident in question occurred. The trial judge confirmed that the defendant’s guilty plea had not been induced by any threats or promises. The trial judge also asked the defendant if he was on any drugs or medications which would affect his ability to understand the proceedings, to which the |4defendant gave an equivocal answer concerning a pain medication he takes at night.

As to a waiver of rights, the trial judge asked the' defendant if he was aware that by pleading guilty he was waiving his right to a trial by jury, his right to confront and cross-examine witnesses at a jury trial, and his right to appeal the proceedings for any reason except for excessiveness of the sentence imposed. The defendant answered all these questions in the affirmative.

The colloquy lacks any express mention by the trial judge Of the defendant’s right against self-incrimination. Alternatively, the minute entry for June 18, 2007, reflecting the taking of the defendant’s guilty plea, made a general reference to the defendant having waived his constitutional rights per Boykin, supra. Jurisprudence has established that in the event of a discrepancy between the minutes and the transcript, the transcript controls. State v. Lynch, 441 So.2d 732 (La.1983).

Furthermore, the record contains no other affirmative showing that a proper waiver of the defendant’s right against self-incrimination ever took place. The record contains no guilty plea form indicating an understanding or waiver of the right against self-incrimination nor do the minutes of any of the hearings preceding the taking of the plea indicate that the defendant was informed of his right against self-incrimination. This assignment of error, therefore, has merit.

The trial court has failed to comply with the requirements of Boykin v. Alabama, supra. Therefore, the plea of guilty and conviction shall be setRaside, the sentence vacated, and the case remanded to the district court for further proceedings. Because we are reversing the defendant’s conviction, there is no need to address the defendant’s second assignment of error regarding the excessiveness of the sentence imposed.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is reversed, his sentence vacated, and the case remanded to the trial court for further proceedings.

REVERSED, VACATED AND REMANDED.