author:
PATRICIA RIVET MURRAY, Judge.
      CANNIZZARO, J.,

text:
    STATE of Louisiana v. Marvin LEGENDRE.
    No. 2005-KA-1469.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 27, 2006.

      Eddie J. Jordan, Jr., District Attorney, Michael G. Morales, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge LEON A. CANNIZZARO JR.).
   PATRICIA RIVET MURRAY, Judge.

| ^his is a criminal case. The defendant, Marvin Legendre, appeals his conviction and sentence for attempted armed robbery. In his sole assignment of error, he asserts a Confrontation Clause violation under Crawford v. Washington, 541 U.S. 86, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On October 4, 2002, the State filed a bill of information charging Mr. Legendre with one count of armed robbery, a violation of La. R.S. 14:64. On October 11, 2002, Mr. Legendre was arraigned and entered a plea of not guilty. On December 19, 2002, the district court conducted a combined preliminary hearing and motion to suppress identification hearing. At the conclusion of the hearing, the court found probable cause and denied the motion to suppress. On the same day, the State amended the bill to correct the spelling of the victim’s name, and Mr. Legendre maintained his plea of not guilty. On October 30, 2003, the State filed a motion to invoke the firearm sentencing provisions of La.C.Cr.P. art. 893.3.

|;,On November 14, 2003, a second motion to suppress the identification hearing was held. The motion was again denied. On January 5, 2004, a twelve-person jury tried the case. The jury returned a responsive verdict of guilty of attempted armed robbery, a violation of La. R.S. 14:27 (attempt) and 14:64 (armed robbery). On November 30, 2004, the district court sentenced Mr. Legendre to serve thirteen years at hard labor without the benefit of probation, parole, or suspension of sentence. The court also designated the offense as a crime of violence. This appeal followed

STATEMENT OF THE FACTS

On July 24, 2002, Antia Taylor, who had just cashed her payroll check, was standing outside a fast food restaurant on St. Claude Street in New Orleans, talking on her cell phone. When she hung up the phone, a man passed by her on a bicycle. The man, whom she later identified as Mr. Legendre, then put his bicycle down and walked onto a porch. As soon as Ms. Taylor walked by him, the man jumped in front of her and demanded her money. At first she thought he was joking. When she saw he was holding a gun, she realized he was serious. Although she gave him her purse, he returned it to her, and he instructed her to take out the money and give it to him. After she complied, the man demanded that she give him her cell phone. A neighbor walked out from a gate, and asked Ms. Taylor if she was all right. The robber immediately jumped on his bicycle and fled. The neighbor attempted to catch him, but was unable to do so. The neighbor then assisted Ms. Taylor in calling 911.

Officer Charles Augustus was the first police officer to arrive at the scene. Ms. Taylor provided him with a description of the robber as a black male, approximately nineteen or twenty years old, wearing a white t-shirt, black jean|3shorts, and short twists in his hair. She described the robber’s height and weight as approximately five feet five inches and one hundred twenty pounds. However, she did not describe the robber as having any gold teeth.

Officer Augustus turned the investigation over to Detective Mark McCourt, who also interviewed Ms. Taylor at the scene. After learning that her cell phone had been stolen, Detective McCourt instructed Ms. Taylor not to have the phone turned off immediately because the robber might use it. Detective McCourt then obtained subpoenas duces tecum for the cell phone records in hopes that the information would lead to the robber’s identity. Through investigation, Detective McCourt obtained the first name “Marvin.” He also obtained the information that “Marvin” matched the description of the robber provided by Ms. Taylor. Based on that information, Detective McCourt placed Mr. Legendre’s photograph in a photographic line-up. On August 2, 2002, Detective McCourt showed the line-up to Ms. Taylor. She immediately identified Mr. Legendre’s photograph as that of the person who robbed her. She also positively identified him in court at both the pretrial motion hearing and trial.

At trial, the defense attempted to impeach the testimony of Detective McCourt and Ms. Taylor regarding the photographic line-up. The defense presented Ms. Taylor’s testimony from the pretrial motion hearing. At that hearing, she testified that the detective informed her that someone had been arrested, that the police had two line-ups (not one), and that she could not identify anyone from one of the line-ups. At trial, both Detective McCourt and Ms. Taylor testified that she was shown only one line-up. Ms. Taylor also testified at trial that she absolutely identified Mr. Legendre from the line-up and that she could not remember being shown two sets of photographs. Ms. Taylor also admitted that she |4told the police that the robber was taller than she is and that she is approximately five feet seven inches tall.

Mr. Legendre was the sole defense witness. He denied committing the armed robbery of Ms. Taylor. He testified that he had never been convicted of a crime. He also testified that he has had gold on his bottom teeth since 1998 or 1999 and that he is approximately five feet five or six inches tall. The State did not cross-examine him.

ERRORS PATENT

A review of the record for errors patent reveals that there are none.

DISCUSSION

As noted at the outset, Mr. Legendre’s sole assignment of error is that his right to confront his accusers under Crawford was violated. Mr. Legendre complains of the following testimony given by Detective McCourt on direct examination:

Q. When you received those [cell phone] records from the subpoena, how did you proceed with your investigation?
A. I re-subpoenaed the names of the individuals assigned to those phones and I attempted to make contact with those people. I was able to make contact with one individual and I informed that person that I was conducting an armed robbery investigation and I provided a description of — as provided to me by Ms. Taylor—
BY MR. JENKINS [THE STATE’S ATTORNEY]:
Objection to any alleged statements made by another third person.
THE COURT:
The witness hasn’t given any statement.
BY MR. JENKINS:
I know but I’m trying to prevent a mistrial by saying it early.
THE COURT:
Okay. Continue.
|KBY DETECTIVE MCCOURT:
Based upon the description I provided I was then, in turn, provided with a first name of, Marvin.
BY MR. JENKINS:
Objection again. That’s hearsay if they don’t have an alleged witness to come in to allege that this happened it becomes hearsay. And actually, Your Honor, it is just speculative in nature.
BY THE COURT:
Over ruled [sic]. The Officer can testify as to what he did.
BY MR. JENKINS:
Correct, but not in terms to what allegedly — If it’s provided somebody had to tell him that’s what he did.
BY THE COURT:
Based on information he received the Officer did something.
BY MR. JENKINS:
Right. That’s what I’m saying, not someone provided him.
BY THE COURT:
So based on whatever information you received you are free to tell the jury what you did.
BY DETECTIVE MCCOURT:
I received some information—
BY MR. JENKINS:
Objection to hearsay, Judge. He knows it because he’s looking at me.
BY THE COURT:
You can tell the jury — Just tell the jury what you did. Based on some information you received you—
BY DETECTIVE MCCOURT:
I then obtained a photograph of Marvin Legendre from the Motions Computer.

Mr. Legendre complains that the district court, over the objection of defense counsel, allowed Detective McCourt to testify that he interviewed an unidentified | ^witness who told him that “Marvin” was the person who used the victim’s cell phone after it had been stolen. Mr. Legendre contends that this testimony by Detective McCourt constituted impermissible hearsay. He points out that two months after his trial the United States Supreme Court in Crawford held that the admission of “testimonial” hearsay is a confrontation violation. He argues that the testimony at issue is clearly “testimonial” because it is “[a] statement made knowingly to the authorities that describes criminal activity.” United States v. Cromer, 389 F.3d 662, 673 (6th Cir.2004).

Mr. Legendre further argues that the district court erred in suggesting that the testimony was introduced for a valid non-hearsay purpose — as investigative background information offered merely to show why the officer took a certain course of conduct in response to what he was told. (As discussed below, this non-hearsay purpose is referred to as the explanation exception to the hearsay rule.) He argues that the State lacked a legitimate purpose for Detective MeCourt’s hearsay testimony. He further argues that the jury did not need to know the precise manner in which the detective came to include his photograph in the line-up; rather, it sufficed for the jury to be told that the photograph matched the description the victim provided. He still further argues that Detective McCourt’s testimony was used to bolster the State’s case as to identity by allowing him to suggest to the jury that the unidentified witness, who must have personally known Mr. Legendre, was able to link him to the crime. Mr. Legendre thus argues that he is entitled to a new trial.

|7The State counters that the trial court did not err in finding that the explanation exception applies. Under that exception, the State contends that the trial court properly allowed the testimony to show that Mr. Legendre’s name was obtained pursuant to an investigation and not some nefarious police activity. Even assuming the testimony was erroneously admitted, the State contends that the error was harmless. The State notes that the testimony contained no evidence of Mr. Legendre’s guilt; rather, it explained how his name was developed to be included into a photographic lineup for the victim to view.

Hearsay is defined as an oral or written assertion, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. arts. 801 A(l) and 801 C. Hearsay evidence is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. Hearsay evidence is excluded because the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability. State v. Everidge, 96-2665, p. 7 (La.12/2/97), 702 So.2d 680, 685.

As noted, Mr. Legendre’s evidentiary argument is two-pronged. First, he alleges a Crawford violation. Second, he alleges the trial court erred in finding the explanation exception to the hearsay rule applies. ■ We separately address each prong of his argument.

Crawford violation

Although Crawford was decided two months after Mr. Legendre’s trial, the ju-risprudenee has applied it retroactively. State v. Cox, 04-42, pp. 7-8 (La.App. 3 Cir. 6/16/04), 876 So.2d 932, 938 (collecting cases finding Crawford applies retroactively to cases tried before it was decided). The hallmark of the Crawford |scase is that it divorced the Sixth Amendment Confrontation Clause analysis from the traditional hearsay exceptions under the rules of evidence. The Crawford case replaced the reliability analysis enunciated in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), with a categorical rule requiring both that the witness be unavailable and the defense have a prior opportunity to cross examine the witness. The Supreme Court, however, confined the application of the categorical rule to “testimonial” statements. As to “non-testimonial” statements, the Roberts reliability analysis still applies. The application of Crawford thus turns on the classification of the statement at issue as “testimonial.”

Despite the significance of the term “testimonial” to the holding in Crawford, the Supreme Court expressly declined to give a complete definition to that term. Nonetheless, the Court engaged in a general discussion of the meaning of “testimonial” statements. First, the Court enumerated the following three formulations of the “core class” of “testimonial” statements:

[i]“ex parte in-eourt testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” ...
[ii] “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” ... [and]
[iii] “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364. The Court further noted that “some statements qualify under any definition-for example, ex parte testimony at |fla preliminary hearing.” Crawford, 541 U.S. at 52, 124 S.Ct. at 1364. The Court still further noted that “[statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” Id. Finally, the Court noted:

Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.

Applying these principles to Detective McCourt’s testimony at issue, we find, as Mr. Legendre contends, that it is testimonial. The unidentified witness was not shown to be unavailable and Mr. Legendre never had an opportunity to cross-examine the witness. However, this does not end our inquiry. Confrontation errors, including Crawford violations, are subject to a Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), harmless error analysis. Cox, 2004-42 at pp. 9-10, 876 So.2d at 939. The proper standard of review is as follows:

The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt.... Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the Imwitness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.”

State v. Wille, 559 So.2d 1321, 1332 (La.1990).

Given the victim’s testimony and her positive identification of Mr. Legendre both in the photograph line-up and at trial as the man who robbed her, we find Detective McCourt’s hearsay testimony did not contribute to the verdict. Moreover, the jury was fully apprised before Detective McCourt’s testimony that he hoped to obtain information through the victim’s cell phone records that would lead to the robber’s identity. The specific fact that the detective was given a first name “Marvin” matching Mr. Legendre’s first name was implicit in the resulting inclusion of his photograph in a line-up. Thus, the admission of the testimony was harmless error.

The unidentified witness’s statement to Detective McCourt that “Marvin” matched the description provided by the victim similarly was harmless error. Whether Mr. Legendre matched the description was something that the jury could determine for itself by looking at him. Thus, the jury was in the unique position of determining for itself whether there was any credibility to the unknown person’s belief that “Marvin” matched the description and Detective McCourt’s belief that Mr. Legendre was “Marvin.” Notably, there was extensive trial testimony regarding the description provided by the victim to the police, and the jury had ample opportunity to make this determination. This testimony coupled with the victim’s out-of-court and in-court identification leads to the conclusion that any error did not contribute to the verdict and was harmless.

\ ^Explanation Exception to Hearsay Rule

The other prong of Mr. Legendre’s evidentiary argument is that the trial court erred in relying on the explanation exception to the hearsay rule. The Louisiana Supreme Court summarized this exception as follows:

The testimony of a police officer may encompass information provided by another- individual without constituting hearsay, if it is offered to explain the course of the police investigation and the steps leading to the defendant’s arrest. State v. Monk, 315 So.2d 727, 740 (La.1975); See also State v. Witte, 559 So.2d 1321, 1331 (La.1990); State v. Smith, 98-1417 (La.6/29/01), 793 So.2d 1199. However, this exception does not allow the state carte blanche authority to bring before the jury the substance of the out-of-court information that would otherwise be barred by the hearsay rule. State v. Wille, 559 So.2d 1321, 1331 (La.1990); State v. Hearold, 603 So.2d 731, 737 (La.1992).

State v. Maise, 2000-1158, p. 17, (La.1/15/02), 805 So.2d 1141, 1153.

The explanatory exception has also been summarized as follows:

In criminal cases, the arresting or investigating officer will often explain [his actions] ... by stating that he did so ‘upon information received’ and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.

McCormick on Evidence, § 248 (2d ed.1972).

The jurisprudence requires that courts exercise great caution in invoking the explanation exception so as to allow this type of testimony. State v. Broadway, 1996-2659, pp. 8-9 (La.10/19/1999), 753 So.2d 801, 809; Wille, 559 So.2d at 1331 (citing McCormick on Evidence § 249 (3d ed.1984) (noting that admission of such testimony under the explanation exception is an “area of widespread abuse”). “The mere fact that an arresting officer had acted on information might be relevant admissible non-hearsay (as, for example, to explain the police officer’s conduct), but this vehicle for the admissibility of the fact that the officer acted upon | ^information should not become a passkey to get to the jury the substance of the out-of-court information, directly or indirectly, that otherwise might be barred by the hearsay rule.” George Pugh, Louisiana Evidence Law, 429-430 (1974). “While the statements arguably have some probative value (explaining the officer’s actions and providing a ‘complete story’), the statements may have strong probative worth on the issue of the criminal defendant’s guilt.” 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof § 10.1, n. 4 (2006 Supp.). Explaining this distinction, the Louisiana Supreme Court in Wille stated:

When an out-of-court statement, such as information received by a police officer during an investigation of a crime, has both an impermissible hearsay aspect and a permissible nonhearsay aspect, the issue of relevancy becomes significantly interrelated with the hearsay issue. If the nonhearsay content of the statement has little or no relevance, then the statement should generally be excluded on both relevance and hearsay grounds. Marginally relevant nonhear-say evidence should not be used as a vehicle to permit the introduction of highly relevant and highly prejudicial hearsay evidence which consists of the substance of an out-of-court assertion that was not made under oath and is not subject to cross-examination at trial.

Wille, 559 So.2d at 1331.

“Generally, an explanation of the officer’s actions should never be an acceptable basis upon which to admit an out-of-court declaration when the so-called ‘explanation’ involves a direct assertion of criminal activity against the accused.” State v. Hearold, 603 So.2d 731, 737 (La.1992); State v. Preston, 623 So.2d 938, 941 (La.App. 4th Cir.1993). An appropriate analysis of this issue focuses on whether the officer’s reason for suspecting or arresting the defendant is “sufficiently relevant at the trial on the merits as to offset the prohibited (and thus unfairly prejudicial) hearsay use of the out-of-court statements.” George W. Pugh, et al., Handbook on Louisiana Evidence Law, 545 (2006 ed.). “Absent some unique circumstances in which the explanation of purpose is probative evidence of 113a contested fact, such hearsay evidence should not be admitted under an ‘explanation’ exception.” State v. Hearold, 603 So.2d 731, 737 (La.1992).

The application of this exception is illustrated in State v. Hawkins, 1996-0766 (La.1/14/97), 688 So.2d 473. In that case, the investigating officer testified that an anonymous caller reported that there were three women in the vehicle with the defendant, who the caller stated was the perpetrator of the robbery and murder. The detective interviewed the women, who gave statements inculpating the defendant. They later testified at trial. The defendant objected to the testimony of the detective regarding the substance of the tip he received.

On review, the Louisiana Supreme Court in Hawkins held that the first part of the detective’s testimony regarding the tip — his testimony that the caller stated that there were several individuals in the car with the perpetrator — was relevant and not hearsay. The court stated that this testimony squarely fit within the explanatory exception, because this testimony merely explained the course of the police investigation and the steps leading to the defendant’s arrest. Hawkins, 1996-0766 at p. 5, 688 So.2d at 478. The Court, however, found that the second part of the testimony setting forth the substance of the tip provided by the caller — his testimony that the perpetrator was the defendant — constituted inadmissible hearsay because it did not fall within any of the exceptions to La. C.E. art. 802. Id. The court, however, did not end its analysis at that point. Rather, it held that such evi-dentiary errors are confrontation errors, which are subject to a Chapman harmless error analysis. Based on that analysis, the court found that the admission of the testimony was harmless as it was not important to the State’s case and cumulative to the trial testimony of the witnesses who were in the vehicle with the |14defendant and who had actually been the persons who gave the defendant’s name to the investigating officer.

Similarly, in State v. Thompson, 1998-0988 (La.App. 4 Cir. 1/26/00), 752 So.2d 293, a narcotics case, we held that an officer’s testimony that he confirmed the first name and description of the suspect that an informant had given him constituted inadmissible hearsay. We reasoned that “[a]lthough ... [the officer] did not go into detail concerning the information he had received by telling the jury the name and description, the jury could nevertheless have ... inferred that [the defendant] Thompson was the person whose first name and description were confirmed.” Thompson, 1998-0988 at p. 6, 752 So.2d at 297. Nonetheless, we found the error harmless given the other evidence establishing the State’s case.

Analogously, we find Detective McCourt’s testimony that the unidentified witness provided him with the first name Marvin constituted inadmissible hearsay. Nonetheless, we find, as discussed above in addressing the Crawford violation issue, that the introduction of Detective McCourt’s hearsay testimony was harmless error. We thus find this assignment of error without merit.

DECREE

For the forgoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

CANNIZZARO, J., concurs in the result.

CANNIZZARO, J.,

concurs in the result.

| ^though I concur in the result reached by the majority, I think that the majority has made quite a stretch in finding that the Crawford case is applicable in the instant case, when the facts in the Crawford case and the facts in the instant case are not at all similar. I also see no need to rely on the Crawford case, because even if the police officer’s testimony regarding “Marvin” is hearsay (something that I do not concede), admitting the testimony was at worst harmless error. If the testimony was not hearsay, then the testimony was admissible. I do not think that the discussion on “testimonial” statements is at all applicable in the instant case, and I do not think it should have been included in the majority opinion, even as dicta.

      . We note that it is unclear if defense counsel’s objection was overruled as the district court agreed that Detective McCourt should limit his testimony only to what he did and not to what he was told, in essence sustaining defense counsel's objection to any hearsay. Notably, defense counsel did not ask for an admonishment or mistrial at any time. When the trial court sustains an objection and defense counsel fails to request an admonition or a mistrial, the defendant cannot later raise the issue on appeal. State v. Dank, 1999-0390, pp. 10-11 (La.App. 4 Cir. 5/24/00), 764 So.2d 148, 158; State v. Biagas, 1999-2652, p. 11 (La.App. 4 Cir. 2/16/00), 754 So.2d 1111, 1117-18 (citing State v. Baylis, 388 So.2d 713, 720-721 (La.1980)). However, the trial court did initially overrule defense counsel's objection, and thus the issue was preserved for appellate review.

      . In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court held that an “adequate indicia of reliability" is required before out of court statements can be admitted. If the statement at issue falls within one of the firmly rooted hearsay exceptions, reliability can be inferred.

      . Recently, the Supreme Court in Davis v. Washington, - U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), which involved a 911 call, enunciated the following rule regarding the classification of statements as "testimonial":
      Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primaiy purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primaiy purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
      126 S.Ct. at 2273.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Dwayne HALEY v. Cheryl G. LEARY.
    No. 2006-CA-0788.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 2006.
    Rehearing Denied Oct. 31, 2006.

      Dwayne Haley, Gretna, LA, In Proper Person, Plaintiff/Appellant.
    Cheryl Prestenback Buchert, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

11 Plaintiff/appellant, Dwayne Haley, appeals from the judgment rendered by the trial court in court on February 24, 2006, in favor of defendant/appellee, Cheryl G. Leary. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

Mr. Haley and Ms. Leary, the parents of a young daughter, Ahnia Nadriel Leary-Haley, never married but on December 22, 2004, the couple signed a consent judgment which provided interim sole custody to Ms. Leary and ordered Mr. Haley to complete a co-parenting class and to follow-up with the court-appointed evaluator and anger management instructor before joint custody would be restored.

On February 24, 2006, the trial court heard motions filed by both parties, including Mr. Haley’s motion for contempt regarding visitation and Ms. Leary’s motion for contempt regarding child support, motion for sole custody due to Mr. Haley’s failure to complete the requirements of the consent judgment, and a notice of relocation. Ms. Haley was represented by attorney Cheryl buchert. After taking testimony from the parties, the trial court issued the following rulings: (1) Mr. |?Haley’s motion for contempt against Ms. Leary regarding visitation was denied; (2) Ms. Leary’s motion for contempt against Mr. Haley for nonpayment of child support was denied; (3) Mr. Haley was ordered to pay $71.50 in back child support; (4) Mr. Haley was ordered to pay $20.00 in sheriffs costs; and (5) Ms. Leary’s request for sole custody was deferred pending information from the court-appointed custody evaluator to determine whether Mr. Haley complied with a prior court order regarding anger management and co-parenting classes. A judgment reflecting the trial court’s ruling was signed on March 8, 2006.

The record also reflects that on the day before trial, Mr. Haley filed a motion entitled “Motion to Strike Silly, Frivolous Pleading From the Record and Contempt of Court as to Attorney Cheryl Buchert With Memorandum in Support.” Mr. Haley sought to strike Ms. Leary’s motion for contempt because, as he claimed, the allegations against him were false. Mr. Haley also sought to have Ms. Leary’s attorney held in contempt of court for her participation in the matter. The transcript reflects that Mr. Haley’s motion was denied as frivolous from the bench. Furthermore, the trial court began to instruct Ms. Buchert to include the denial of the motion in the judgment that Ms. Buchert was to prepare. However, it is evident that the trial court changed its directive, explaining that the denial would instead be inscribed on the face of the original motion and order contained in the record. The record reflects that the trial court wrote and initialed the words: “DENIED summarily as frivolous” on the original order attached to Mr. Haley’s motion. It is this judgment that Mr. Haley now appeals.

^Standard of Review

Appellate courts review the trial court’s findings of fact under a “manifest error” or “clearly wrong” standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court created a two prong test for overturning the factfin-der’s decisions, which includes: 1) finding the trial court’s rulings have no reasonable factual basis and 2) the record indicates that the trial court’s findings are wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The appellate court must determine, after reviewing the entire record, if the trial court’s decision was clearly wrong or reasonable. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The trial court’s legal findings are reviewed under the de novo standard. Balseiro v. Castaneda-Zuniga, 04-2038, p. 6 (La.App. 4 Cir. 8/17/05), 916 So.2d 1149, 1153. “A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial.” Banks v. New Orleans Police Dep’t, 01-0859, p. 3 (La.App. 4 Cir. 9/25/2002), 829 So.2d 511, 514.

Discussion

On appeal, Mr. Haley argues that the trial court erred in signing an incomplete judgment that failed to contain language concerning the denial of his motion to strike. Curiously, Mr. Haley does not argue that the denial of his motion was in error. Rather, he only finds error in the fact that the denial of his motion was not included in the text of the judgment prepared by Ms. Buchert. Mr. Haley submits that the judgment should be “annulled” because it was rendered through some improper practice or procedure. In support of this argument, Mr. Haley cites La.Code Civ. Proc. art. 2004, which provides that a final judgment obtained by fraud or ill practice may be annulled. We note, however, that Mr. RHaley does not identify the fraud or ill practice of which he complains. Nevertheless, it is clear that Article 2004 pertains specifically to an action for nullity and is not applicable to this appeal.

Ms. Leary counters that there was no need for the judgment to state that Mr. Haley’s motion to strike was denied because the trial court ruled from the bench and documented the ruling on the face of the motion and order. We agree.

Conclusion

After our thorough review of the record, we find no error in the trial court’s factual or legal findings. Considering the fact that the trial court denied Mr. Haley’s motion from the bench and inscribed said ruling on the face of the original motion and order, we cannot say that the trial court erred in failing to include the denial of the motion in the written judgment rendered on March 8, 2006.

AFFIRMED.

      . Ms. Leary was not served with the motion.


author: PICKETT, Judge.

text:
    STATE IN the INTEREST OF P.A.R., M.A.R., D.P.R, J.R.R., K.L.H. Jr. and K.L.H.
    No. 06-423.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 18, 2006.

      Jo Ann Nixon, Glenda August & Associates, New Iberia, LA, for Appellee, K.L.H. Sr.
    Leah Antoinette Beard, Lafayette, LA, for Appellant, State of Louisiana, Department of Social Services.
    Joseph Ricky LaFleur, Nicole M. Gui-dry, Bart Allen Broussard, Attorney at Law, Abbeville, LA, for Appellees, P.C., P.A.R., M.A.R., D.P.R, J.R.R., K.L.H. Jr., K.L.H., C.R.R.H.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

hThe State of Louisiana appeals a judgment of the trial court denying its petition to terminate the parental rights of CRRH and KH Sr.

STATEMENT OF THE CASE

CRRH is the mother of six children: PR, a boy, born October 24, 1991; MR, a girl, born November 24, 1992; DR, a boy, born September 28, 1994; JR, a girl, born November 30, 1995; KH, Jr., a boy, born November 29,1996; and KH, a boy, born April 9, 1998. PC is the father of the three oldest children, PR, MR, and DR. KH Sr. is the father of the three youngest children, JR, KH Jr., and KH.

In late August 2003, CRRH became angry with PR and hit him with a broom handle because she was mad at him. The first blow, to PR’s legs, caused the broom handle to break. Pieces of the broken broom hit KH Jr. The second blow, with the splintered end of the broom handle, struck PR in the face, causing a laceration. Soon thereafter, CRRH fled the home. KH Sr., who was married to and living with CRRH at the time, did not seek medical attention for PC. Two days later, when KH Sr.’s mother saw PC, she contacted the police, who contacted the Office of Child Services (OCS). An Instanter Order removing all six children from the custody of CRRH and KH Sr. and placing them in the custody of the state was filed on August 29, 2003, and signed the same day. The six children have remained in the custody of the state since that time.

This was the second time the state had removed the children from CRRH’s home. In May 1996, the four oldest children were removed because CRRH was living in a house that had been condemned for use by children under six because of high lead levels. CRRH had failed to move out of the house and had missed | ^appointments to monitor the elevated lead levels in the children’s blood. The children were returned to their mother’s custody in March 1997 and released from state supervision in May 1997.

Upon removal, the children were separated and placed with relatives or in foster homes. The parents were given a case plan to follow with the goal of reunification. The original plan included visitation with the children twice a month, a substance abuse evaluations, psychological evaluations, and parenting classes. CRRH and KH Sr. were also required to maintain suitable housing and notify OCS of any change of address. The plan was later amended to require CRRH and KH Sr. to get jobs and send $50/month for support of the children. The trial court held status conferences every six months to monitor their progress. The OCS reports indicate that while CRRH and KH Sr. did attend visitation with their children regularly, they failed to consistently attend parenting classes, anger management classes, or substance abuse counseling. They also both tested positive for cocaine and/or marijuana on several occasions. Neither CRRH nor KH Sr. paid any support. After he and CRRH separated, KH Sr. also failed to provide a permanent address. His mail was sent to his mother’s house, where three of the children were living. When a case worker made a visit to the home, KH Sr. was babysitting the children. The children were subsequently removed from their grandmother’s home.

In the OCS report dated July 23, 2004, the permanent plan was changed from reunification to adoption. A judgment continuing custody with the state dated August 12, 2004, notes that the goal is adoption. On February 14, 2005, the state filed a Petition for Termination of Parental Rights against CRRH, PC, and KH Sr. A hearing was held on January 24, 2006. The trial court took the matter under advisement. The | acourt issued Reasons for Ruling on February 14, 2006, wherein it indicated that the parental rights of PC would be terminated. The court stated that it would not terminate the parental rights of CRRH and KH Sr., but would “grant an additional six months continued custody to the State for a probable final opportunity for [CRRH] and [KH Sr.] to continue to work on case plans.” The court indicated that it would require both CRRH and KH Sr. to follow their case plans more closely, including attending NA meetings and submitting to monthly drug screens. In Supplemental Reasons for Ruling issued on February 23, 2006, the trial court further explained its reasons, and also indicated that he would release both CRRH and KH Sr. from any support obligation previously ordered by the court. A judgment issued in conformity with the written reasons was signed on March 1, 2006. The state now appeals. PC has not appealed the termination of his parental rights.

ASSIGNMENTS OF ERROR

The state asserts four assignments of error:

1. The trial court erred in its finding that the parents, CRRH and KH Sr. had substantially complied with then-case plans.
2. The trial court erred in failing to find that the parents’, CRRH and KH Sr., parental rights should be terminated.
3. The trial court erred in releasing the parents from any support obligation previously ordered by the court.
4. The trial court erred in finding that the termination of parental rights was not in the best interest of the minor children.

DISCUSSION

In Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982), the United States Supreme Court recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their child and that the natural parents’ interest does not “evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” |4The Court went on to acknowledge that, while the State has an “urgent interest” in a child’s welfare and in providing the child with a permanent home, as long as there is reason to believe that a positive, nurturing parent-child relationship exists, the State’s interest must favor preservation over severance of natural familial bonds. Id. at 766, 102 S.Ct. at 1401 (quoting Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). Thus, the Court found that parents who are faced with the possibility of forced dissolution of their parental rights must be provided with fundamentally fair procedures in order to ensure that children’s legal bonds are not erroneously severed from fit parents. Id. at 753-54, 102 S.Ct. at 1395.

State ex rel. G.J.L., 00-3278, p. 5 (La.6/29/01), 791 So.2d 80, 84 (emphasis added).

The Louisiana Children’s Code set forth the procedures required for removing children in need of care from the custody of their parents and the procedures that must be followed to reunify the children with their parents or terminate their parental rights. “Because due process requires that a fundamentally fair procedure be followed when the State seeks to terminate the parent-child legal relationship, actions to terminate must be scrutinized very carefully.” Id. at 85.

Louisiana Children’s Code article 673 states:

Within sixty days after a child enters the custody of a child care agency, the custodian shall develop a case plan detailing the custodian’s efforts toward achieving a permanent placement for the child. The health and safety of the child shall be the paramount concern in the development of the case plan.

In this case, the children entered the custody of the state pursuant to an Instanter Order issued on August 29, 2003. The court held a hearing to consider the state’s petition seeking that the children be adjudicated as children in need of care on November 13, 2003. The trial court issued a judgment the same day adjudicating the children in need of care. In the judgment, the court stated that the case plan for reunification was to be submitted and attached to the judgment. It was not. The judgment also states, “the Court hereby approves the case plan dated _ | swhich was submitted and filed by the Department of Social Services and is made a part of this Judgment by reference.” There is no date on the line. Pursuant to La.Ch.Code art. 674, the case plan should have been submitted prior to the hearing, which was held seventy-six days after the children were placed in the custody of the state. Article 674 states:

Copies of the case plan shall be filed with the court ten days before any scheduled disposition, permanency, or case review hearing. Upon filing, the department shall mail copies of the ease plan to counsel of record and shall mail them by certified mail to any unrepresented parent at his last known address, unless otherwise ordered by the court for good cause.

A ease plan was sent to the trial court in anticipation of a February 12, 2004, review hearing. The Children’s Code explains the trial court’s responsibility when reviewing the case plan at article 677, which states:

A. At the disposition hearing, the court shall consider the content or implementation of the case plan and any response filed concerning it. At any other hearing held subsequent to the filing of the case plan, on its own motion or upon motion of any party for good cause shown, the court may consider the content or implementation of the case plan or of any response filed concerning it.
B. If no party files a written response objecting to the case plan and the court finds the plan protects the health and safety of the child and is in the best interest of the child, the court shall render an order approving the plan.
C. If the court does not approve the case plan, it shall enter specific written reasons for finding that the plan does not protect the health and safety of the child or is otherwise not in the best interest of the child.

The trial court did approve the case plan in a February 12, 2004, judgment. The next review hearing was held on August 12, 2004. The judgment approves a case plan, but the judgment also notes that the plan has been changed to adoption. There is, however, no revised case plan in the record that was filed either before the hearing |fipursuant to article 674 or attached to the judgment. As the change or the goal of the case plan from reunification to adoption is a significant change, the case plan should have been in the record. This assures that the parents are served with copies of the case plan.

In a letter to the court dated October 19, 2004, OCS attaches a case plan, noting that it was “not available at the time of the hearing.” This case plan also increases the support obligation of KLH Sr. and CRRH from $50.00 to $200.00. Since one of the reasons listed in the Petition to Terminate Parental Rights is the failure to provide support for a period of six months pursuant to La.Ch.Code art. 1015(4), this is also a significant change in the case plan.

The next review hearing was held on February 10, 2005. The trial court approved a case plan dated February 17, 2005. There is no evidence in the record of a case plan submitted to the court prior to the hearing, and the court cannot approve a case plan that has not been submitted until seven days after the hearing and meet the requirements of fundamental fairness as required by Sandosky.

The termination petition was filed on February 14, 2005. It listed two grounds for termination. The first was failure to comply substantially with the case plan pursuant to La.Ch.Code art. 1015(5), and the second was failure to provide support for six months. Since our examination of the record finds no properly approved case plan, the termination petition must fail. The “fundamentally fair procedure” required by our supreme court and outlined in the Children’s Code has clearly not been followed. The judgment of the trial court is affirmed. Costs of this appeal in the amount of $120.00 are assessed against the state.

AFFIRMED.


author: PETERS, Judge.

text:
    J.L. FRANKLIN v. SECRETARY OF STATE, State of Louisiana, Al Ater.
    No. 06-1332.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 19, 2006.

      James B. Doyle, Lake Charles, LA, for PlaintifiyAppellant, J.L. Franklin.
    Stephen Hawkland, Office of Secretary of State, Baton Rouge, LA, for Defendant/Appellee, Secretary of State, State of Louisiana, Al Ater.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PETERS, Judge.

1 ¡¿Plaintiff-appellant, J.L. Franklin (“Franklin”), has appealed the trial court’s dismissal of his election challenge, brought pursuant to La.R.S. 18:1409, which sought the nullification of the September 30, 2006, election for the Calcasieu Parish School Board District Fourteen seat. Franklin alleged that multiple voting irregularities altered the results of the election, resulting in his loss to the winner by four votes. The trial court held that substantial irregularities were not established and dismissed the election suit. We do not reach the merits of this appeal. We dismiss the appeal, recognizing that this court has not gained jurisdiction to hear this matter due to the failure of the plaintiff-appellant to file an appeal bond, as required by La.R.S. 18:1409(D).

DISCUSSION OF THE RECORD

Franklin was a candidate for re-election for the Calcasieu Parish School Board, District Fourteen seat in the September 30, 2006 election. Franklin received 574 votes and the winner, Elray Victorian, received 578 votes, of the 1260 votes cast in the precincts included in that election. Franklin filed a Petition to Contest the Election Result, alleging that the election results were altered due to various voting irregularities. The bench trial of this matter occurred on October 12, 2006 at 10:00 a.m. At the close of the trial, the trial court orally ruled that the results of the election would be upheld.

A judgment reflecting this ruling was presented to the trial court and signed on the following day, October 13, 2006 at 2:00 p.m. On that same day and time, Franklin filed his Motion and Order for Appeal and obtained a signed Order from the trial court, granting the motion to appeal to this court, setting a return day of October 16, 2006 and ordering the posting of an appeal bond in the amount of $5,000.00.

|aThe record was lodged with this court on October 17, 2006. An examination of the record revealed that a pleading styled Security Bond for Costs was filed by counsel for Franklin, on October 13, 2006. The body of that pleading states in its entirety, “In accordance with La.R.S. 18:1409, I am security for the costs in above numbered and entitled cause, and agree to pay costs as they accrue, according to law.” This court noted that this document was the sole document contained in the record purporting to satisfy the appeal bond requirement.

“When jurisdiction does not attach in the appellate court, that court is obliged to recognize that fact and refuse to entertain review of a case over which it has never acquired jurisdiction.” Guilliot v. City of Kenner, 326 So.2d 359, 362 (La.1976). The statute governing appeals of actions contesting elections states in relevant part:

§ 1409. Trial; decision; appeal
D. Within twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to secure the payment of costs. ...

La.R.S. 18:1409(D)(emphasis added). Louisiana Code of Civil Procedure Articles 5121, et seq., demonstrate that certain definite requirements apply to appeal bonds. Adopting the language of the supreme court in Guilliot, 326 So.2d 359, 362-363, we recognize the following:

While the appellate court does not have jurisdiction to consider the form, substance and sufficiency of an appeal bond, it does have the authority to determine whether what purports to be a bond is in fact a bond and whether it was timely filed, for only then does its jurisdiction attach. Mason v. State Farm Mutual Automobile Insurance Co., 312 So.2d 175 (La.App.1975); Jones v. Galloway, 259 So.2d 623 (La.App.1972).

Relying on the supreme court’s decision in Guilliot, 326 So.2d 359, we find thatjjthe purported appeal bond furnished was no bond at all and that this court is without jurisdiction to entertain this appeal. The defects of this alleged bond are glaring, and on its face, the document fails to substantially comply with the requirements of a bond. See Guilliot, 326 So.2d 329; see also, La.Code Civ.P. arts. 5121, 5121.1, and 5122. The filing of this document is not a timely filing of security which gives jurisdiction to this appellate court. Guilliot, 326 So.2d 359. Moreover, although we recognize that appeals are favored and that La.Code Civ.P. arts. 5124 and 5126 require the opportunity to cure insufficient or invalid bonds, we do not find that these articles contemplate the curing of documents which are no bonds at all. Guilliot, 326 So.2d 359. As the supreme court stated in Francois v. Thibodeaux, 02-1588 (La.6/12/02), 821 So.2d 479, 479:

A general rule of statutory construction is that in the absence of legislative intent to the contrary, a special statute enacted for a particular purpose will not be presumed to have been within the scope of a subsequent general enactment on the same subject matter.... [I]n the event of ambiguity or conflict, special laws prevail over general laws.... The relevant statute, La.R.S. 18:1409(D) is clear and unambiguous in its requirement. It provides that ‘[w]ithin twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to secure the payment of costs.’ (Emphasis supplied). Where the requirements of law are so straightforward, it is improper to resort to equity. See and compare, La. Civil Code arts. 4 and 9.

Clearly, an appeal bond was not posted within twenty-four hours, as required by La.R.S. 18:1409(D), and the appeal was not perfected. Therefore, the appeal is hereby dismissed.

APPEAL DISMISSED.

      . The record reflects that the return day was originally set by the trial court as November 13, 2006, but was corrected by the trial court to reflect a return day of October 16, 2006 in accordance with La.R.S. 18:1409.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Danilo PERALTA v. John PERAZZO, Northrop Grumman Ship Systems, Inc. and XYZ Insurance Company.
    No. 06-CA-343.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Rehearing Denied Nov. 21, 2006.

      James E. Shields, Jr., Shields & Shields, Gretna, Louisiana, for PlaintiffiAppellant.
    Brian C. Bossier, Tara Nunez Smith, Erin H. Boyd, Christopher T. Grace, III, Blue Williams, L.L.P., Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., CLARENCE E. McMANUS and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| j>Plaintiff/appellant Danilo Peralta appeals a summary judgment granted by the Twenty-Fourth Judicial District Court in favor of defendant/appellee Northrop Grumman Ship Systems Inc. We affirm.

In October 2003, Peralta filed a Petition For Damages against Northrop and its employee, John Perazzo. Peralta alleged that he was working as a longshoreman for Northrop on July 30, 2001 and was in the course and scope of his employment when Perazzo intentionally threw a chair which hit him in the leg and caused injury. Per-alta averred that the injury was caused by Perazzo’s intentional act, and that because Perazzo was in the course and scope of his employment at the time of the incident, his actions were imputable to Northrop.

Following discovery, Northrop filed a Motion For Summary Judgment, alleging that as a matter of law, the incident in question was not an intentional act |3so as to constitute an exception to the exclusive remedies of the Longshore and Harbor Worker’s Compensation Act (LHWCA). A hearing on the motion was subsequently-held, at which time the court rendered judgment in favor of Northrop. Peralta filed a Motion For New Trial. Following a show cause hearing, the matter was taken under advisement, and ultimately the court denied a new trial. Upon request by Per-alta, the court issued written Reasons For Judgment. Peralta appeals both the summary judgment and the denial of a new trial.

The essence of plaintiffs argument in the present case is that Perazzo’s intent to injure him is a contested issue of fact. He contends that the court weighed the evidence and made credibility evaluations to determine intent. Under the LHWCA, 33 U.S.C.A. 905(a), the employer’s liability is exclusive and in place of all other liability unless the employer fails to secure payment of compensation. It is not contested that Northrop paid benefits to Peralta under the act.

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1. The movant bears the burden of proof. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

|4A “material fact” to be one in which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967.

Although summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice, the Supreme Court has acknowledged that “summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.” Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730.

In the record on appeal is the decision by the Department of Labor awarding benefits pursuant to 33 U.S.C. 901 et al. According to the decision, Peralta testified that on the day of the incident, he and several co-workers including Angus Fon-taine, Albert Fonse, Jamie St. Ann and Earl Jenkins were in the shipyard office for their daily meeting “when the foreman, John Perez (sic) entered the room in an angry state yelling profanities. Perez threw his desk against the wall and threw his chair behind him, nearly missing Claimant and his co-workers who were able to move out of the way.After leaving the room to cool off, Perez returned still angry, and yelled directly at Claimant about the work he had finished the day before. Claimant testified Perez did not explain why he was angry. He threw his chair behind him a second time, hitting Claimant in the left knee. Claimant stated he did not know whether Perez tried to hit him, but after he hit him, Perez called Claimant stupid.”

Also attached to the record was a partial transcript in which Peralta testified that on the morning of the incident, Perez came into the office angry, and asked who was messing with his desk. When no one answered, he grabbed the desk and threw it against the wall. Then he pulled a chair and threw it behind him. He went off and | scame back, asking Peralta what was wrong with the job he had done on the weekend. After Peralta’s reply, Perez cursed, said he felt like shooting someone, and then grabbed his chair again, throwing it behind him, and striking Peralta. Per-azzo’s affidavit admitted into the record stated in pertinent part that he grabbed the chair and slammed it down by his desk, striking Peralta by accident. He was not aware that Peralta had been hit until later when Peralta came in and requested a pass to go to first aid. Jamey St. Amant, Al Faunce, and Earl Jenkins, employees present at the time, stated in their individual affidavits that Perazzo became upset, cursed, and shoved his chair behind him, hitting Peralta by accident.

Peralta’s opposition to Summary Judgment included his own affidavit, in which he avers that Perazzo intentionally cursed, said he would kill someone, and threw the chair at him. According to the affidavit, Perazzo had the specific intent to hit and injure him. Interestingly, also attached to the opposition was another affidavit from St. Amant, in which he first stated that he had not been offered the opportunity to speak with his personal attorney prior to the affidavit sworn in favor of Northrup. The affidavit went on to state that “Peraz-zo intentionally cursed at Danilo Peralta, loss[sic] control and then threw a chair at Danilo Peralta.” In two other portions of the same affidavit, St. Amant deposed only that that Perazzo “threw a chair which struck Danilo Peralta”

In its Reasons For Judgment, the trial court considered the narrow exception to 33 U.S.C.A. 905(a), and held that Peralta did not meet his burden of proving that Perazzo shoved or threw the chair with the specific intent to injure him. The court determined that the affidavits by the parties confirm that Perazzo intentionally threw the chair, but struck or injured Per-alta accidentally. The court found that Peralta’s evidence relative to Perazzo’s intent was contradicted by his testimony in the Longshoreman’s claim, and concluded that there was no genuine issue of material fact relative to intent.

|fiThe federal courts have carved out an exception to exclusive liability provisions where the injury inflicted is the result of an intentional act. Houston v. Bechtel Associates Professional Corp., 522 F.Supp. 1094 (U.S.D.C.1981). The overwhelming weight of authority is that “the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct short of genuine intentional injury.” Id. Nothing short of a specific intent to injure the employee falls outside the scope of 33 U.S.C.A. 905(a). Absent such specific intent, the employee is foreclosed from maintaining a tort action against his employer. Id.

Knowledge and appreciation of a risk is not the same as the “intent” to cause injury. Neither knowingly permitting a hazardous work condition to exist, nor willfully failing to furnish a safe place to work, nor even willfully violating a safety statute constitutes the requisite intent.

Houston v. Bechtel, supra.

In Houston, the court held that an action by an employee against his employer alleging willful, wanton, reckless, and unlawful misconduct is barred.

A plaintiff may not satisfy his burden under C.C.P. art. 967 by resting on mere allegations or by filing self-serving, conclusory affidavits which merely restate those allegations. Sims-Gale v. Cox Communications of New Orleans, 2004-0952 (La.App. 4 Cir. 4/20/05), 905 So.2d 311. See also Stephens v. Southern Sweeping Services 03-826 (La.App. 5 Cir. 11/25/03) 862 So.2d 197. In the present case, although Peralta’s affidavit stated the chair was thrown at him, the evidence submitted by Northrop is that the chair was thrown behind Perazzo. The rather curious second affidavit filed by St. Amant does not raise an issue of material fact. To the extent that he attempts to recant his prior affidavit, the document contains internal inconsistencies which render unreliable its evidentiary value, and further, it does not address the fundamental issue of intent to injure the plaintiff.

|70n de novo review, we agree with the trial court that Peralta did not carry his burden of proving the existence of a material fact regarding Perazzo’s specific intent to injure him. Peralta, in his opposition affidavit sworn after his testimony before the Labor judge, did not attest that Peraz-zo was facing him when he threw the chair, rather than behind him as he testified at the hearing. Similarly, St. Amant’s second affidavit does not change his earlier statement that Perazzo threw the chair behind him. In point of fact, no witness testified that Perazzo was looking at Peralta when he threw the chair; rather, the evidence that Perazzo was not facing Peralta is uncontradicted.

Peralta has offered no evidence that he will ever be able to prove anything more at a trial on the merits than that Perazzo threw a chair and that the chair hit him. In the absence of anything more than plaintiffs conjecture as to intent, there is no genuine issue of material fact concerning Perazzo’s actions. Peralta suffered an accidental injury caused by Perazzo’s willful and reckless conduct, which as a matter of law precludes him from maintaining a tort action against Northrop.

Inasmuch as Peralta failed to establish any grounds for the granting of a new trial, the court properly denied the motion.

For the foregoing reasons, the judgment is affirmed. Plaintiff is taxed all costs of this appeal.

AFFIRMED.


author: PAINTER, Judge.

text:
    Robert WEINGARTNER v. LOUISIANA ICE GATORS.
    No. 05-1211.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      See also 937 So.2d 1.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, Thomas B. Delsa, Coving-ton, LA, for Plaintiff-Appellant, Louisiana Ice Gators.
    Robert L. Hackett, Atlanta, GA, for De-fendanb-Appellee, Robert Weingartner.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   ON REHEARING

PAINTER, Judge.

hThis matter is before us on a rehearing after having granted a motion by the Claimant to supplement the record. After reviewing that supplement and the original record herein, this court finds nothing to change the result in this matter.

With regard to prescription, the supplemental record contains nothing which would change our conclusion that the money paid to Weingartner after the end of the season was earned during the season and that those payments cannot be considered wages in lieu of compensation. Therefore, we do not change our findings that prescription was not interrupted by these payments and that Weingartner’s claim for indemnity benefits is prescribed.

However, because the supplemental record contains a judgment bearing the docket numbers of both claims, we can consider Weingartner’s claim for penalties and attorney’s fees for failure to pay for dental care pursuant to an earlier compensation claim filed under Office of Workers’ Compensation docket number 03-1966. Concerning the dental treatment claim, the hearing officer stated, in written reasons for judgment: “The dental treatment sought was recommended prior to the date of the accident in question. That dental treatment specifically relating to the accident has already been approved and paid.” Given this statement and the fact that the hearing officer referred only to the May 9, 2000 accident in her written reasons, she evidently ruled only on the claims rising out of the May 9, 2000 claim, and not the previous claim, in spite of the consolidated docket numbers now on the reasons for judgement. The judgment itself does not mention the dental treatment claim. However, the Claimant’s pretrial statement suggests that he was seeking relief for that claim. It bears both docket numbers and states as an issue to be litigated: “Penalties and attorney’s fees associated with arbitrary and capricious denial of payment for | ^.medical expenses resulting from the injuries suffered while employed by Employer and pled in the two consolidated cases.” The jurisprudence allows us to consider the workers’ compensation court’s failure to rule as a denial of the claim. Cagle v. Spade Drilling Co., 325 So.2d 354,(La.App. 3 Cir.1975). Therefore, we have reviewed the record to ascertain whether Weingartner proved his claim for failure to pay for the previous dental treatment claim.

At trial on May 3, 2005, Weingartner testified that Dr. Soileau discontinued the treatment of the February 2000 injury because he wasn’t paid. Weingartner further testified that he paid out of his own pocket to have his front teeth replaced in January 2001. However, in his deposition of March 2002, Weingartner states that he believed that all the medical bills were up to date. Additionally, Dr. Soileau in his deposition never says whether he was paid or why he discontinued treatment. Further, the record does not contain any bills or statements from Dr. Soileau, and Wein-gartner does not refer to documentary evidence in the record which shows non-payment.

The claimant who seeks imposition of sanctions for failure to timely pay medical bills has the burden of establishing that the medical bills were not paid within sixty days of receipt. Brumley v. Nantachie Oil Co., 04-1404 (La.App. 3 Cir. 3/16/05), 900 So.2d 944. Given this record, and his contradictory evidence on payment, Wein-gartner did not carry this burden.

Therefore, as we stated in the original opinion herein:

[T]he judgment of the trial court concerning indemnity benefits is reversed. Weingartner’s claim for workers’ compensation indemnity benefits arising out of his accident of May 9, 2000 is dismissed. That portion of the judgment concerning medical treatment is affirmed. Costs of this appeal are to be paid by the Appellee, Robert Weingart-ner.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

THIBODEAUX, Chief Judge, dissents for the reasons stated in the original opinion.

PICKETT, J., dissents.


author: PICKETT, J.

text:
    STATE of Louisiana v. Kenneth L. MIMS.
    No. KA06-1219.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Hon. James C. Downs, District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Appellant, Kenneth L. Mims.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, J.

hOn September 22, 2006, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed due to its untimely perfection. In response, Defendant, Kenneth Mims, filed a brief with this court arguing that this court should consider the trial court’s order of appeal as an order granting an out-of-time appeal. In the alternative, Defendant requested this court to remand the matter so that Defendant may amend his motion for appeal for compliance with the law relating to post-conviction relief applications. We hereby order that Defendant’s motion for appeal be treated as an application for post-conviction relief and remand the case to the trial court for further proceedings.

After a jury found Defendant guilty of second degree murder, in violation of La. R.S. 14:30.1, the district court, on January 12, 2006, sentenced Defendant to serve life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Defendant did not move to reconsider the sentence. Defendant filed a motion for appeal on April 4, 2006, which the district court granted.

Under La.Code Crim.P. art. 914, a motion for appeal must be made no later than thirty days after either the rendition of the judgment from which the appeal is taken or the ruling on a motion to reconsider sentence filed pursuant to La.Code Crim.P. art. 881.1. Because Defendant failed to file his motion for appeal within the time provided by La.Code Crim.P. art. 914, his conviction and sentence became final. Once Defendant’s conviction and sentence became final, he could no longer obtain an appeal by simply filing a motion for appeal. State v. Labiche, 96-433 (La.App. 3 Cir. 7/31/96), 680 So.2d 77. Thus, Defendant must first obtain reinstatement of his right to appeal by way of a properly filed application for post-conviction relief. Id.; State v. Dixon, 00-516 (La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475 So.2d 336 (La.1985).

| gin Dixon, this court stated:

State v. Counterman, 475 So.2d 336 (La.1985) sets forth the procedure which should be followed to obtain the right to file an out-of-time appeal. In Counterman, the defendant was sentenced on February 10, 1983. No appeal was filed within the time period set forth in Article 914. On April 10, 1984, the defendant filed a motion for an out-of-time appeal. The trial court granted the motion without a hearing and without affording the district attorney an opportunity to respond to the motion. The First Circuit Court of Appeal dismissed the appeal “on the basis that the trial court was without authority or jurisdiction to grant an out-of-time appeal on an ex parte motion.” Id. at 338. The defendant filed a motion for out-of-time appeal with the court of appeal, which was denied. The defendant then filed a motion for out-of-time appeal with the supreme court. The supreme court held that the defendant lost his right to obtain an appeal by simply filing a motion for an appeal after the time delays had run-not because the trial court was divested of jurisdiction but “because the conviction and sentence became final when the defendant failed to appeal timely.” Id. (footnote omitted). The supreme court held that the proper procedure for obtaining an out-of-time appeal is by filing an application for post conviction relief pursuant to La.Code Crim.P. arts. 924-930.7. [footnote omitted.] In so ruling, the supreme court found several advantages to following this procedure. Primarily, the district attorney would be allowed an opportunity to oppose a request, and the defendant would be afforded an evidentiary hearing to prove his allegations.
An out-of-time appeal is appropriately granted when the trial court has determined it is warranted “after due consideration of such factors as the length of the delay in defendant’s attempt to exercise the right and the adverse effect upon the state caused by the delay.” Id. at 340. The supreme court ultimately concluded that the defendant’s motion for an out-of-time appeal filed in the trial court should have been treated as an application for post conviction relief and remanded the case to the trial court for consideration as such. Following Counterman, we find that Defendant’s January 18, 2000 motion for appeal should have been treated by the trial court as an application for post conviction relief requesting an out-of-time appeal. We note that La.Code Crim.P. art. 930.8 now provides that the time delays for filing an application for post conviction relief are applicable to requests for out-of-time appeals, unless an exception is made. Therefore, Defendant shall be permitted an opportunity to amend his motion to comply with the requirements of Articles 924-930.8. By doing so, the State will then be given an opportunity to contest the granting of an appeal.

Dixon, 768 So.2d at 101-102.

Defendant’s appeal is hereby dismissed and this case is remanded to the trial court for further proceedings. Defendant is to be permitted an opportunity to amend phis motion for appeal to comply with the requirements of La.Code Crim.P. arts. 924-930.8, and the State is to be given an opportunity to contest the granting of an out-of-time appeal.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Deyon Romain GUILLORY.
    No. 06-673.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    C. Brent Cored, District Attorney, ADA Trent S. Brignac, Ville Platte, LA, for Plaintiff/Appellee, State of Louisiana.
    Mack I. Frank, Opelousas, LA, for Defendant/Appellant, Deyon Romain Guillory.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hOn November 22, 2004, the State filed a bill of information charging Defendant, Deyon Romain Guillory, with possession of cocaine with intent to distribute, in violation of La.R.S. 40:967. On November 29, 2005, the trial court heard Defendant’s motion to suppress, which it denied. On the same date, a jury began hearing evidence in this case. On November 30, 2005, the jury found Defendant guilty of the lesser-included offense of possession of cocaine.

On February 9, 2006, the court sentenced Defendant to four years at hard labor, with one year suspended and two years active supervised probation. The court denied Defendant’s motion to reconsider sentence.

Defendant now appeals his conviction. In his lone assignment of error, he challenges the trial court’s denial of his motion to suppress. Our analysis of the record indicates that the trial court’s denial of Defendant’s motion to suppress was correct, and we affirm the trial court.

FACTS

On December 5, 2003, an informant for the Evangeline Parish Sheriffs Office, Lonnie Fontenot (the informant), contacted Defendant, asking to obtain an ounce of cocaine. Defendant advised the informant that he was too busy at the time, but told him that he would contact him later. The informant then contacted Detective Keith Dupre (Dupre) to advise him of what Defendant had said. Later that same day, Defendant contacted the informant and told him he could supply half an ounce of cocaine. Defendant called again later and told the informant to meet him on Point Blue Road in Evangeline Parish.

The informant made another call to Dupre to advise him that the meeting with Defendant had been set. Dupre and two other officers, Captain Joe Demourelle and | ^Deputy Robert Bryce Fontenot, met the informant at his residence and followed him to Point Blue Road. Defendant was parked just off the road. When the informant pulled over near his truck, the officers turned around and also parked.

Dupre secured the informant, pretending to arrest him so that Defendant would not realize he was an informant. The other officers approached Defendant. Deputy Fontenot advised Defendant to get on the ground. Defendant hesitated at first, moving around his truck, but upon encountering Demourelle, he complied. Deputy Fontenot asked him if he had any weapons or drugs in his possession, and he answered that he had cocaine in his left front pants pocket. The deputy checked Defendant’s pocket and seized a plastic bag containing white powder. Subsequent laboratory testing established that the white powder was cocaine.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, this court notes that there is one error patent in the minutes of sentencing.

The minutes of sentencing fail to set forth the conditions of probation imposed by the trial court at sentencing. Therefore, this case must be remanded to the trial court with instructions to amend the minutes of sentencing to reflect the conditions of probation imposed by the trial court.

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant contends that the trial court erred in denying his motion to suppress. Further, he argues that the cocaine seized in the present ease was the fruit of an unlawful search that was performed without either probable cause or a warrant. In addressing this assignment of error, this court has reviewed the trial evidence, as well as the evidence presented at the hearing on the 13motion to suppress.

Defendant cites La.Code Crim.P. art. 215.1(A), which states that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

The seizure in the present case conforms to the language previously cited. Also, in a similar factual scenario, the supreme court approved a stop and subsequent seizure:

Granted. Because defendant Fedison was en route to the predicted destination, at the predicted time, driving the predicted vehicle, the confidential informant demonstrated the requisite “special familiarity” with the defendant’s affairs to justify a police stop. Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990); State v. Robertson, 97-2960, p. 5 (La.10/20/98), 721 So.2d 1268, 1270. In addition, given the circumstances under which they stopped the vehicle, the police lawfully ordered both defendant Fedison, the driver, and defendant Johnson, his passenger, out of the car. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997); State v. Landry, 588 So.2d 345, 346-47 (La.1991). Further, because Johnson had accompanied the defendant to a scheduled drug deal as predicted by the informant, the officers had reasonable suspicion to detain and question her. La.C.Cr.P. art. 215.1; Landry, 588 So.2d at 348. Johnson’s subsequent admission that she carried narcotics in her underwear, and her production of a quarter of an ounce of cocaine, gave the police probable cause to place her under arrest.
The trial court therefore erred in suppressing the evidence seized from defendant Johnson and erred further in ruling that the police fatally tainted their subsequent warrant application for Fedi-son’s residence following the arrests of both defendants by including in the affidavit Johnson’s statement to the officers that defendant Fedison had given her the cocaine to conceal when he stopped [sic] the officers in the rearview mirror of his car just before the stop. The police had obtained that statement lawfully and decided to obtain the search warrant at the scene of the vehicular stop, before taking the defendants to Fedison’s residence, kicking in the door, and making a security sweep of the premises. Because the warrant application contains no information derived from the security sweep and concludes with the arrests of Fedison and Johnson on the street, the officers would have inevitably discovered the cocaine hidden in Fedison’s sock by lawful means even assuming that they initially discovered it in a search which exceeded the 14proper scope of a security sweep of the premises to identify and account for all of the individuals present. See Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (evidence observed in plain view by officers during an illegal entry to secure the premises need not be excluded if they again enter under a valid warrant wholly independent of the initial illegal entry and if the decision to obtain the warrant was also wholly independent of the initial entry).
The trial court’s judgment granting defendants’ motions to suppress is therefore reversed and this case is remanded for further proceedings consistent with the views expressed herein.

State v. Fedison, 01-2736, pp. 1-2 (La.2/8/02), 807 So.2d 834, 835 (per curiam).

In the present ease, Deputy Fontenot told Defendant to assume a prone position. After initial hesitation, he complied. Thus, it appears Defendant may have been subject to a greater degree of detention than the defendant in Fedison. However, the Fedison court approved the extra step of removing both the driver and passenger from the vehicle after the initial stop in that case, and specifically stated the police “had reasonable suspicion to detain and question” the co-defendant. Id. (Emphasis added). It is noted that an even greater degree of restraint, handcuffing, has been approved by some Louisiana courts within the context of investigatory stops. See, e.g., State v. Adams, 01-3231 (La.1/14/03), 836 So.2d 9, and State v. Gray, 99-47 (La.App. 5 Cir. 6/1/99), 738 So.2d 668. Placing Defendant in a prone position did not render the Fedison reasoning inapplicable to the present case.

A key similarity between the two cases is that the information provided by the informants in each case accurately predicted the actions of the defendant involved. Further, the officers in the present case did not stop Defendant’s vehicle and remove him from it. He was already stopped and out of the vehicle when officers approached. As the case sub judice is analogous to Fedison, the trial court’s denial of the motion to suppress was correct.

^Defendant also argues that a search warrant issued for a search of his residence was defective. The State offers a number of counter-arguments, but the most succinct one suggests that the issue is moot. The State suggests that Defendant’s conviction was clearly based upon the seizure of cocaine from his pants pocket at the original stop. As previously noted, the jury found Defendant guilty of the lesser-included offense of possession of cocaine, rather than the charged offense of possession with intent to distribute cocaine. The trial evidence showed that Defendant had fifteen grams of cocaine in his pocket. In the subsequent search of his residence, the police recovered a scale, two gallon-sized bags containing suspected cocaine residue, and a fire safe containing suspected cocaine residue. Laboratory testing was performed on only one of the two bags of suspected cocaine residue; the result was positive. The safe tested negative for residue. Dupre did not submit the scale to the lab apparently because there was no indication of an illegal substance on it. The State also had difficulty establishing that the scale presented in court was the scale seized from Defendant’s residence.

It is apparent that the jury chose to reject the evidence seized from the house, as that evidence would have supported the theory that Defendant was engaged in the ongoing distribution of cocaine. Even if this court were to find the search warrant was invalid, Defendant’s conviction would still stand. The cocaine that was found in Defendant’s physical possession was located and seized before the warrant was signed.

| fiFor the reasons set forth above, Defendant’s lone assignment of error lacks merit.

CONCLUSION

Defendant’s conviction is affirmed. Additionally, the trial court is instructed to amend the minutes of sentencing to reflect the conditions of probation imposed by the trial court at sentencing.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . It is not clear when officers handcuffed Defendant, but it appears they did not do so until after finding the cocaine.

      . Defendant lived at his parents' home.

      . Approximately half an ounce.

      . Forensic chemist Kevin Ardoin of the Acadi-ana Crime Lab testified that when the lab has a number of bags of suspected residue to test, it typically stops the testing after a bag tests positive.

      . The scale was ultimately admitted into evidence.


author: EZELL, Judge.

text:
    Virgil HEBERT v. C.G. LOGAN CONSTRUCTION, INC.
    No. WCA 06-612.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Mark Alfred Ackal, Attorney at Law, Lafayette, LA, for Defendant/Appellant, C.G. Logan Construction, Inc.
    Jay Anthony Pucheu, Attorney at Law, Marksville, LA, for PlaintiffiAppellee, Virgil Hebert.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

__[jC.G. Logan Construction (Logan) appeals the decision of the workers’ compensation judge awarding Virgil Hebert supplemental earnings benefits (SEB), temporary total disability benefits (TTD), penalties and attorney fees resulting from an alleged work-related accident.

Mr. Hebert worked for Logan as a laborer. On October 13, 2004, he alleges he injured his back after cutting a piece of pipe with a chop saw. Mr. Hebert claims that after bending down to cut the pipe, he rose with the saw in his hand and felt a sudden weakness in his lower back. The incident was unwitnessed. Mr. Hebert did not report the incident that day and continued to work the rest of his shift. Mr. Hebert did not return to work the next week, claiming he thought the injury would heal itself. He did not notify anyone at Logan that he was not coming into work, or of the reason. He did not seek medical attention.

On Saturday, October 23, 2004, ten days after the alleged accident, he had still not notified anyone at Logan of his absence or any reason therefore. That night, Mr. Hebert saw Kent Richie, the owner of Logan at a local bar. After being asked why he had not been to work, Mr. Hebert told Mr. Richie that he has suffered an injury on the job. Mr. Richie told Mr. Hebert to come into the office and file a workers’ compensation report on Monday. Mr. Hebert did not show up to file report until Wednesday.

After the workers’ compensation injury report was filed, Mr. Hebert was sent to Dr. Gillespie twice by Logan. Dr. Gillespie found that Mr. Hebert had a back sprain and recommended light work and physical therapy. Mr. Hebert never returned to work for Logan and it denied his workers’ compensation claim. Mr. Hebert then) ¡¿filed this workers’ compensation suit seeking medical and indemnity benefits.

The workers’ compensation judge awarded Mr. Hebert SEB for the time period between the date of the accident, October 13, 2005, through January 10, 2005, the date prior to Mr. Hebert’s appointment with Dr. McCann. The workers’ compensation judge awarded TTD from January 11, 2005, through December 20, 2005. These TTD were to continue subject to the rights of the parties under the Workers’ Compensation Act. Finally, the workers’ compensation judge awarded $2,000.00 in penalties for the failure to approve continuing medical care, $2,000.00 in penalties for failure to pay indemnity benefits, and $7,500.00 in attorney fees to Mr. Hebert. From this decision, Logan appeals.

In its first assignment of error, Logan claims that the workers’ compensation judge erred in concluding Mr. Hebert had sustained an injury by accident suffered in the course and scope of employment. For the following reasons, we disagree.

In a workers’ compensation case, as in other cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Smith v. La. Dep’t of Corr., 93-1305 (La.2/28/94), 633 So.2d 129. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Harrison v. Baldwin Motors, 03-2682 (La.App. 1 Cir. 11/3/04), 889 So.2d 313, writ denied, 05-249 (La.4/1/05), 897 So.2d 609.

A workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Holiday v. Borden Chem., 508 So.2d 1381 (La.1987). A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious 13doubt upon the worker’s version of the incident and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Id. Barring circumstances that cast suspicion on the reliability of the worker’s un-contradicted testimony, the fact finder should accept the testimony as true when determining whether the worker has discharged his burden. Brown v. Kwok Wong, 01-2525 (La.App. 1 Cir. 12/20/02), 836 So.2d 315.

Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of the trier of fact, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993).

The workers’ compensation judge stated in his oral ruling that he felt this ease hinged on the credibility of the witnesses. He found the testimony of Mr. Hebert to be credible. Mr. Hebert was consistent in his testimony and in his accounts to his doctors and employers as to how he sustained his injury — that he injured his back while standing up after bending over to cut a pipe with a chop saw. The workers’ compensation judge found that Mr. Hebert’s testimony was corroborated by the medical records of Dr. Gillespie and Dr. McCann, who both found Mr. Hebert to have a back sprain. Dr. Gillespie placed Mr. Hebert on light duty, with no lifting over twenty pounds. Dr. McCann placed Mr. Hebert on no work at all. Both doc-tors1 ¿recommended physical therapy for Mr. Hebert.

While the record certainly contains facts and testimony that could call Mr. Hebert’s version of the accident into question, the workers’ compensation judge found him to be a credible witness. As such, we owe his decision on this issue great deference. Based on the weight the workers’ compensation judge gave to Mr. Hebert’s testimony and the medical records of the treating physicians, there exists a reasonable factual basis for the finding of the workers’ compensation judge that Mr. Hebert proved he sustained a work-related injury. Accordingly, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Therefore, we can afford no merit to this assignment of error.

Logan next claims that the workers’ compensation judge erred in finding that Mr. Hebert is entitled to SEB, claiming that he was unable to prove that he was incapable of earning ninety percent of his wages due to his work-related injury. Again, we must disagree.

An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. La.R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Lafleur v. Alec Elec., 04-3 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, wife denied, 05-276, 05-277 (La.4/8/05), 898 So.2d 1287, 1288.

Mr. Hebert was awarded SEB from the date of the accident until January 10, | b2005. During this time, Dr. Gillespie had placed Mr. Hebert on light-duty work, with a weight restriction of twenty pounds. The record establishes that to perform the work required of him at Logan, Mr. Hebert would be forced to lift pipes weighing between twenty and thirty pounds, a chop saw of the same weight, and manhole covers weighing around one hundred pounds. The light-duty restriction clearly prevented him from performing his prior job. The workers’ compensation judge found that Logan did not show any job available to Mr. Hebert that paid him ninety percent of his pre-accident wages. We can find no manifest error in this conclusion.

Next, Logan argues that the workers’ compensation judge erred in awarding TTD to Mr. Hebert, as it alleges he did not prove he was physically unable to work. We disagree. On January 11, 2005, Dr. McCann restricted Mr. Hebert from all work after examining his back. This restriction ran until early March, 2005. This fact clearly proves that Mr. Hebert was unable to work during that period. This claim is without merit. However, Logan alternatively argues that TTD, if awarded, should have been terminated in early March, 2005. We agree with Logan that TTD should have ended at that time.

Mr. Hebert last saw Dr. McCann on February 2, 2005. At that time, Dr. McCann again diagnosed Mr. Hebert with the same sprain, again recommended physical therapy, and again placed Mr. Hebert on no work. However, the restriction was to last only four weeks, or until March 8, 2005. After the February appointment, Mr. Hebert never went back to Dr. McCann. While he did see another doctor, no restrictions we placed on him after his February appointment with Dr. McCann. Additionally, Mr. Hebert stated that he did not even take all the pain medications Dr. McCann prescribed for him. He admitted to helping his brother-in-law on painting jobs at this time, and while he stated he was concerned about how it would affect his | fiback, he felt as if he could resume his job at Logan around April or May. There is no proof in the record that Mr. Hebert could not work after March 8, 2005. Accordingly, the award of TTD past this date is in error.

Finally, Logan claims that the workers’ compensation judge erred in awarding penalties and attorney fees for the failure to pay medical and indemnity benefits. An employer avoids the imposition of penalties and attorney fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Wright v. Cypress Gen. Contractors, Inc., 05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526, writ denied, 06-238 (La.4/24/06), 926 So.2d 553.

We find that Logan failed to meet this continuing obligation. The adjuster/investigator assigned to Mr. Hebert’s claim, Phillip Moory, testified that prior to speaking with Mr. Hebert, he had already begun to suspect fraud based on interviews with employees of Logan. However, he had no notes or documentation of these interviews. He stresses that the denial was based in part on allegations about a prior accident involving Mr. Hebert’s back, despite there being discrepancies among Logan personnel and himself as to how the alleged accident was discovered. Mr. Moory testified that he denied the claim after speaking with Mr. Hebert on November 2, 2004, prior to Mr. Hebert being seen by any medical doctor. After Mr.Hebert was diagnosed with a sprain by Dr. Gillespie, Logan’s doctor of choice, no change was made at all in the manner in which his case was handled. The workers’ compensation judge found that the claim was denied on mere suspicion of |7fraud. Mere suspicion is not enough to discontinue benefits. Bushnell v. S. Farm Bureau Cas. Ins. Co., 271 So.2d 267 (La.App. 3 Cir.1972). We find no error in the award of penalties and attorney fees.

For the above reasons, the decision of the workers’ compensation judge is amended to terminate the award of TTD to Mr. Hebert after March 8, 2005. Otherwise, the decision is affirmed. Costs of this appeal are to be split by the parties.

AFFIRMED AS AMENDED.

      . There is conflicting testimony as to the content and duration of this conversation.

        . Moreover, the accident in question was in 1996, eight years prior to this claim. Mr. Hebert was in a rollover accident. The hospital admission form mentioned trauma to the back, although no damage was ever found. Mr. Hebert claimed to never suffer from back pain as a result of the auto accident, and Logan employees testified that he was clearly able to work after the 1996 accident without back problems. Despite Mr. Mooiy’s and Logan’s constant referrals to this accident, the workers' compensation judge found this accident to be unrelated and completely irrelevant to the case at hand. We completely agree with the workers’ compensation judge's assessment of this matter.