author: PETERS, J.

text:
    STATE of Louisiana v. Maureen VALLOT.
    No. 05-0532.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    A.C. Elias, District Attorney’s Office, Non-Support Division, New Iberia, LA, for Appellee, State of Louisiana.
    Maureen Vallot, St. Martinville, LA, In Proper Person.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   PETERS, J.

| T Maureen Vallot appeals a trial court judgment ordering her to pay to the Louisiana Department of Social Services, Support Enforcement Division, the sum of $200.00 per month as child support for two of her minor children together with an additional five percent per month administration fee. For the following reasons, we reverse the trial court judgment and remand the matter for further proceedings.

APPLICABLE LAW

Understanding the current status of this litigation is next to impossible without first considering the applicable statutes and the procedure mandated by those statutes. In considering the applicable statutes, we note that this litigation began on November 14, 2003, when the State of Louisiana (state) filed a bill of information charging Mrs. Vallot with criminal neglect of family, a violation of La.R.S. 14:74.

Louisiana Revised Statutes 14:74(A)(l)(b), which is the applicable section of the statute, provides that “[cjrimi-nal neglect of family is the desertion or intentional nonsupport ... [b]y either parent of his minor child who is in necessitous circumstances, there being a duty established by this Section for either parent to support his child.” The penalty for violation of this statute is provided for in La. R.S. 14:74(D)(1), which provides that “[wjhoever commits the offense of criminal neglect of family shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both, and may be placed on probation pursuant to R.S. 15:305.” Additionally, the trial court “may issue a support order, after considering the circumstances and financial ability of the defendant, directing the defendant to pay a certain sum at such periods as the court may direct.” La.R.S. 14:74(D)(2). Obviously, the trial court’s power to impose the punishment provided for in La. R.S. 14:74(D) is conditioned upon a defendant being first convicted of the offense.

12The reference to La.R.S. 15:305 in La. R.S. 14:74(D)(1) is a reference to a special probation statute, the application of which is limited to neglect of family cases. It provides in pertinent part:

Whenever a person has pleaded guilty or been found guilty of the misdemeanor of criminal neglect of family or has been found in contempt of court for failing to pay support as ordered under the provisions of Children’s Code Article 1353, the judge may suspend the execution or imposition of sentence and release the offender on unsupervised probation or probation under the supervision of the Department of Social Services. The judge may suspend the sentence and place the defendant on probation although he has begun to serve the sentence imposed and may impose any specific conditions reasonably related to the offender’s rehabilitation, including but not limited to the conditions of probation as set forth in Code of Criminal Procedure Article 895.

La.R.S. 16:805(A)(1).

As suggested by the reference to La.Ch. Code art. 1353 in the above statute, the offense of criminal neglect of family is also addressed in the Louisiana Children’s Code in Articles 1351 through 1355. Specifically, La.Ch.Code art. 1352 provides:

A. With the consent of the defendant, at any time prior to a trial on a charge of criminal neglect of family brought pursuant to R.S. 14:74 the court, in lieu of imposing the punishment herein before provided, may issue a support order, after considering the circumstances and financial ability of the defendant, directing the defendant to pay a certain sum, at such periods as the court directs, and to maintain health care insurance.
B. This support shall be ordered payable to the applicable payee.
C. The amount of support as set by the court may be increased or decreased as the circumstances may require.
D. The court may also require the defendant to enter into a recognizance, with or without surety, in order to insure the payment of support and the maintenance of health care insurance. The condition of the recognizance shall be that the defendant shall make his or her personal appearance in court whenever required to do so, and shall further comply with the terms of the order or of any subsequent modification thereof.

1 aThe “applicable payee” referred to in La. Ch.Code art. 1352(B) is defined as “the spouse, the tutor or custodian of the child, the court-approved fiduciary of the spouse or child, or the [Louisiana Department of Social Services] in a FITAP case or in a non-FITAP case in which the department is rendering services as designated by the court to be the payee.” La.Ch.Code art. 1351(6). The abbreviation “FITAP” refers to the Family Independence Temporary Assistance Program. La.Ch.Code art. 1351(5). Additionally, La.Ch.Code art. 1353, which is referred to in La.R.S. 15:305(A)(1), purports to provide for punishment for a defendant who has violated an order issued pursuant to La.Ch.Code art. 1352.

Despite the specific language of La,Ch. Code art. 1352, a criminal neglect proceeding is not always a prerequisite to a stipulation with regard to support under the Children’s Code. Specifically, La.Ch.Code art. 1355 provides:

In cases in which the responsible parent or other person owing a duty of support and the district attorney stipulate to an order of support, the court shall have the power to issue an order of support under the provisions of Article 1352 without the necessity of instituting criminal proceedings pursuant to R.S. 14:74.

With this understanding of the applicable procedure, we turn to a discussion of the history of this litigation.

PROCEDURAL AND FACTUAL HISTORY

The state charged Mrs. Yallot with criminal neglect of family by a bill of information filed November 14, 2003. The bill of information is short on detail and simply states that Mrs. Vallot “[d]id intentionally fail and neglect to support [her] 2 (TWO) minor children, they being persons of necessitous circumstances in violation of the provisions of R.S. 14:74 of the State of La.”

LDespite charging Mrs. Vallot with the offense, the state has not pursued this as a criminal charge. Instead, on January 16, 2004, a preprinted form was filed in the record, reflecting that the hearing officer of the Sixteenth Judicial District Court had held a hearing on that day addressing Mrs. Vallot’s obligation to provide her minor children with medical support. The hearing officer checked boxes on the pre-printed form recommending that the trial court issue an immediate income assignment order and an immediate medical support order directed to Mrs. Vallot. In a blank on the form used to describe the nature of the proceedings, the hearing officer placed the notation “M/S only.” We interpret this notation to indicate that the hearing was for the purpose of considering the medical support issue. Although the form states that only Mrs. Vallot and the assistant district attorney were present, it also contains the signature of Leroy Vallot, Jr., who is described as the complainant. The preprinted form also contains a notation that Mrs. Vallot did not timely appeal the hearing officer’s recommendation, and the trial court executed an order on January 23, 2004, effecting acceptance of the hearing officer’s recommendations. The order is a part of the hearing officer’s preprinted form and appears at the bottom of that form.

The trial court minutes reflect that on that day the hearing officer held a hearing in juvenile court, but the minutes are silent concerning the appearance of either Mrs. Vallot or the assistant district attorney. Moreover, nothing in the record explains how this matter came to be placed on the docket. Additionally, the record contains no transcript of the hearing.

The notation on the preprinted form that Mrs. Vallot had not timely appealed the hearing officer’s recommendations was incorrect, because, on the day of the 1 shearing, Mrs. Yallot filed her appeal with the trial court. The trial court first set the hearing for February 25, 2004, but later rescheduled it for March 24, 2004.

The record contains a transcription of the March 24, 2004 hearing. After conducting the hearing, the trial court orally ordered that “should [Mrs. Vallot] get employment, and should it be available, and should the cost be reasonable, then she has to provide medical insurance. Otherwise, she doesn’t have to.” At the hearing itself, the state presented no evidence and the trial court simply questioned Mr. and Mrs. Vallot without placing either under oath. Mrs. Vallot stated that she was unemployed and attempted to raise other issues concerning the proceedings, but the trial court would not allow her to do so. She claimed to have custody of one of the three children born of the marriage between Leroy Vallot and herself and stated that she had been continuously seeking employment. She suggested that the matters that the trial court would not allow her to discuss were the reasons that she could not obtain employment. Leroy Val-lot stated that he was disabled and acknowledged that he had custody of the two children at issue.

The next pleading in the record now before us is a motion by the state filed October 7, 2004, requesting that the trial court order Mrs. Vallot to pay child support pursuant to “the provisions of LSA R.S. 9:315 et al.” The motion references the trial court order of January 16, 2004, but makes no reference to the pending criminal charge. The trial court set the motion for hearing on November 19, 2004.

|fiThe November 19 hearing occurred before the hearing officer, not the trial court. As was the case with the January 16, 2004 hearing, the record contains no transcript of the hearing and contains only the hearing officer’s standard preprinted form. This time, the hearing officer entered the purpose of the hearing as being to “Set C/S order.” We conclude that C/S stands for child support. As was the case in the January 16 hearing, the form reflects that only Mrs. Vallot and the assistant district attorney appeared. However, unlike the January 16 form, this form specifically states that Mrs. Vallot waived her right to counsel and that she entered into a voluntary agreement or stipulation to pay $200.00 per month effective December 1, 2004, together with a five percent administration fee. The form bears the signature of the hearing officer and Mrs. Vallot.

The court minutes of November 19, 2004, confirm that a hearing took place in juvenile court, but, as was the case in January of 2004, the minutes differ from the content of the hearing officer’s form. Specifically, the court minutes provide that Mrs. Vallot appeared “for arraignment on charges of non support, waived counsel and entered into a voluntary agreement.” (Emphasis added.) The reference to counsel in the preprinted form and the trial court minutes is the first time Mrs. Val-lot’s right to counsel is mentioned in the record. Additionally, the reference to the arraignment in the trial court minutes is the first reference in the record to the pending criminal charge of criminal neglect of family. Interestingly, the hearing officer’s preprinted form provides a box to be checked when a party appears for arraignment, and, in this case, the hearing officer failed to check that box.

Despite the notation on the preprinted form concerning the voluntary nature of Mrs. Vallot’s agreement to the stipulation, questions arise with regard to that issue |7from the very next filing in the record. Attached to the hearing officer’s preprint-ed form is a form agreement the party at issue is to sign to show consent to the five percent administration fee. Although Mrs. Vallot signed this agreement, she placed the written notation below her signature that she “will appeal.” Additionally, on that same day, Mrs. Vallot filed a form motion to appeal the hearing officer’s recommendation.

The trial court responded to the appeal motion by executing an order on November 22, 2004, scheduling a hearing for December 14, 2004. On that same day, Mrs. Vallot filed a pleading asserting supporting evidence for her appeal of the hearing officer’s recommendation. In that pleading, she listed a number of prior events that she wished to present in support of her position.

The record contains a transcript of the December 14, 2004 hearing, which was conducted similarly to the March 24, 2004 hearing. The state presented no evidence, and the trial court merely interrogated Mrs. Vallot, again without placing her under oath. Based upon this interrogation, the trial court determined that Mrs. Vallot was underemployed and affirmed the hearing officer’s recommendation. As was the case with the first hearing, the trial court would not allow Mrs. Vallot to explain herself and kept the matter to the basics of her finding employment. The trial court signed a judgment making the hearing officer’s recommendations a judgment of the court on that same day. The executed judgment included a requirement that Mrs. Vallot pay the $200.00 per month and the administration fee through an income assignment to the Louisiana Department of Social Services, Support Enforcement Division (department).

|sOn December 22, 2004, Mrs. Vallot filed a motion for appeal to the United States Fifth Circuit Court of Appeals, wherein she referenced the December 14, 2004 judgment as the judgment being appealed. On January 11, 2005, the trial court signed an order granting Mrs. Vallot an appeal and setting a return date of April 18, 2005. In granting the appeal, the trial court referenced the December 22 motion, but made no mention of the fact that the appeal was to the federal, and not the state, court of appeal. The trial court then signed a second order granting Mrs. Vallot an appeal on January 31, 2005. In this order, the trial court specifically stated that the grant was to this court and again assigned a return date of April 18, 2005. Additionally, the trial court appointed the Louisiana Appellate Project (Project) to assist Mrs. Vallot in her appeal. It cited as authority for this appointment La. R.S. 15:1550.

On February 17, 2005, the Project filed a motion to have the January 31, 2005 order appointing it to represent Mrs. Val-lot vacated on the basis that the appellate issue was a misdemeanor and/or a child support issue and that the Project has no statutory authority to assist in such proceedings. The next day, the trial court signed an order vacating the prior order and appointing the Sixteenth Judicial District Court Indigent Defender Board to assist Mrs. Vallot on appeal.

Up to this point in the litigation, Mrs. Vallot had represented herself, and this order did not change matters, as no attorney has appeared on her behalf in this appeal. Mrs. Vallot sought to have this court appoint her appellate counsel, but, by an unpublished opinion, another panel of this court denied her motion. See State v. Vallot, 95-532 (La.App. 3 Cir. 11/9/05), 915 So.2d 441. In doing so, this court noted that it has no authority to appoint counsel in civil matters and that the Sixteenth Judicial District | Jndigent Defender Board’s failure to comply with the order of February 18, 2005, must first be addressed in the trial court.

ISSUES ON APPEAL

Mrs. Vallot’s pro se brief filed with this court does not remotely resemble that which is required by Uniform Rules— Courts of Appeal, Rule 2-12.2. It contains no specifications of error or description of the issues to be reviewed. In fact, the brief itself is only two pages in length. However, Mrs. Vallot has attached a number of evidentiary exhibits to her brief and requests that we consider these in rendering our decision. The attached exhibits are not a part of the appellate record.

We have no evidence of the state’s position as it has filed no brief or other response to the appeal.

OPINION

We first note the well-established rule that this court cannot receive new evidence and cannot consider evidence not in the record on appeal. C & B Sales & Serv., Inc. v. Slaughter, 04-551 (La.App. 3 Cir. 10/20/04), 885 So.2d 683. Therefore, we cannot consider the attachments to Mrs. Vallot’s brief. However, in considering the record before us, we do find that she is entitled to relief.

The state’s filing of the bill of information charging Mrs. Vallot with criminal neglect of family precluded the use of La. Ch.Code art. 1355 to effect a stipulation, as that article applies only before institution of criminal proceedings. Additionally, because Mrs. Vallot has never been convicted of the criminal charge, the trial court had no authority to issue a support order pursuant to La.R.S. 14:74(D)(2). Thus, the only statutory authority for the trial court to issue a support order in this matter rests within the provisions of La.Ch.Code art. 1352.

|10The hearing officer in the Sixteenth Judicial District Court derives his authority to consider criminal non-support matters from Rules of Court-Sixteenth Judicial District Court, Rule 36.5, which references the authority provided in La. R.S. 46:236.5. That statute allows hearing officers to “[h]ear and make recommendations on enforcement of child and spousal support, including but not limited to proceedings under Children’s Code Articles 1352 through 1355.” La.R.S. 46:236.5(C)(3)(c). However, in exercising that authority, the hearing officer “shall act as a finder of fact and shall make written recommendations to the court.” La.R.S. 46:236.5(0(3) (emphasis added). Additionally,

The written recommendation of the hearing officer shall contain all of the following:
(a) A statement of the pleadings.
(b) A statement as to the findings of fact by the hearing officer.
(c) A statement as to the findings of law based on the pleadings and facts, including his opinion thereon.
(d) A proposed judgment.

La.R.S. 46:236.5(C)(5) (emphasis added).

A party disagreeing with the hearing officer’s ruling may file an objection with the trial court, and, if timely filed, the trial court “shall schedule a contradictory hearing where the judge shall accept, reject, or modify in whole or in part the findings of the hearing officer.” La.R.S. 46:236.5(0(6) (emphasis added). Further, “[i]f the judge in his discretion determines that additional information is needed, he may receive evidence at the hearing or remand the proceeding to the hearing officer.” Id. (emphasis added).

Inin this matter, the hearing officer did not comply with the requirements of La. R.S. 46:236.5(0(5) in that the record contains no statement of the pleadings, no findings of fact, no findings of law, and no proposed judgment. The trial court held a contradictory hearing, but had no information before it upon which to make a decision, as is evident by the questions asked of Mrs. Vallot by the trial court. Furthermore, the trial court ordered that Mrs. Vallot make her payments to the department despite the fact that no evidence exists that it was rendering services or that this was a FITAP case.

The most damaging defect in the record is the fact that it contains no evidence that Mrs. Vallot knowingly waived her right to counsel. This alone requires that we reverse the trial court judgment and remand this matter for further proceedings.

The legislature enacted La.Ch.Code art. 1352 by 1993 La. Acts No. 442, § 2, and it became effective on June 9, 1993. Its provisions with regard to a consent agreement had previously been incorporated into a former version of La.R.S. 14:75, and the supreme court had previously considered the same language in La.R.S. 14:75 and concluded:

After defendant is charged with criminal neglect of family, the provisions of R.S. 14:75, 75.1 and 75.2 come into play. Some of these are necessarily criminal in nature. The defendant is entitled to counsel and if he cannot afford one, counsel must be appointed to represent him. The trial judge shall explain the defendant’s rights to him (cf. the customary “Boykin” examination) before any proceeding under 14:75 is initiated.

State v. Broussard, 490 So.2d 273, 273-74 (La.1986).

In State v. St. Pierre, 515 So.2d 769, 773 (La.1987), the supreme court further stated:

Broussard requires that a defendant be advised of Boykin protections at the time any stipulation of support is entered under R.S. 14:75. The provisions of that statute are “necessarily criminal in nature,” as they | ^establish a means for the resolution of a pending criminal charge which ... is analogous to a plea bargaining agreement.

Given the status of the record before us and considering all of the matters discussed herein, we find that the trial court erred in rendering the judgment at issue ordering Mrs. Vallot to pay the department $200.00 together with administration costs per month as child support.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment ordering Maureen Vallot to pay $200.00 and a five percent administration fee per month to the Louisiana Department of Social Services, Support Enforcement Division. We remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The minutes found in the record state that the trial court did affirm the hearing officer's recommendation and ordered “that if defendant gets a job the Court will review the matter to determine the amount medical coverage would cost if available.” No such language appears in the transcript.

      . This is a reference to the general guidelines for the determination of child support in any given case. Louisiana Revised Statutes 9:315.19 provides a specific schedule for the underlying determination.

      . We find no such statute in Title 15.


source: Caselaw Access Project

license: Public Domain

text:
    William Tony REEVES v. INTERNATIONAL MAINTENANCE CORPORATION.
    No. 05-1149.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant, William Tony Reeves.

      Gregory E. Bodin, Phillip E. Foco, Edward D. Hughes, Taylor, Porter, Brooks & Phillips L.L.P. Baton Rouge, LA, for De-fendani/Appellee, International Maintenance Corporation.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   PETERS, J.

| William Tony Reeves appeals a judgment in which the workers’ compensation judge (WCJ) declared him not to be permanently and totally disabled, declared him to be capable of returning to work but at a zero-base earning capacity, and rejected his claim for penalties and attorney fees. For the following reasons, we reverse and render.

DISCUSSION OF THE RECORD

On August 15, 2001, Mr. Reeves developed chemically induced asthma in the course and scope of his employment with International Maintenance Corporation (IMC) when a “pipe busted and [he] got sprayed in the face” with titanium oxychloride and hydrochloric acid. Following the work accident, IMC paid Mr. Reeves benefits, including temporary total disability benefits in the amount of $388.00 per week.

However, issues subsequently arose concerning the payment of certain medical expenses. Thus, Mr. Reeves filed a claim on December 10, 2002, for payment of these medical expenses. Thereafter, during the month of November 2003, IMC reduced Mr. Reeves’ benefits to supplemental earnings benefits at a rate of $293.34 to reflect an earning capacity of $6.00 an hour based on a listing of jobs identified for Mr. Reeves. On December 10, 2003, a hearing was held to address the issues of payment of medical expenses and Mr. Reeves’ disability status, ie., whether he was permanently and totally disabled or was entitled only to supplemental earnings benefits. The parties reached a resolution regarding the medical expenses, which resolution they recited on the record at the hearing. Regarding Mr. Reeves’ disability status, the WCJ decided to appoint an independent medical examiner (IME) in the specialty of pulmonary medicine to address the issue of Mr. Reeves’ disability, and ^therefore the WCJ pretermited ruling on the issue at that time. Additionally, IMC agreed at the hearing to reinstate Mr. Reeves’ temporary total disability benefits in the amount of $388.00 per week pending the WCJ’s ruling on the disability issue.

Accordingly, on January 14, 2004, Mr. Reeves filed a claim for penalties and attorney fees in connection with IMC’s reduction of his indemnity benefits and for “any medical and indemnity benefits possibly allowed in his claim.” Following a hearing, the WCJ concluded that Mr. Reeves was capable of returning to light-duty work and therefore was not permanently and totally disabled but was entitled to supplemental earnings benefits at a zero-base earning capacity. However, the WCJ rejected Mr. Reeves’ claim for penalties and attorney fees. Mr. Reeves has appealed, contending that the WCJ erred in failing to find that he was either permanently and totally disabled or temporarily and totally disabled and in rejecting his claim for penalties and attorney fees. Additionally, Mr. Reeves seeks attorney fees for work done on appeal.

OPINION

Disability Status

An employee is entitled to an award of permanent total disability benefits “only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.” La.R.S. 23:1221(2)(c).

| sThe WCJ concluded that Mr. Reeves was not permanently and totally disabled. It is undisputed that Mr. Reeves cannot return to work at an industrial chemical plant. However, there is some evidence in the record to suggest that Mr. Reeves can return to some type of activity. Dr. Jana Kaimal, Mr. Reeves’ treating pulmonologist, indicated that “it would be best for him to go back to work doing something.” Dr. Kaimal testified that there was only “a possibility that he may not be able to do anything.” Dr. Kaimal also signed off on several jobs for Mr. Reeves. Additionally, Dr. Judd Shellito, the IME appointed by the WCJ, was of the opinion that Mr. Reeves could return to work with restrictions. Also, a functional capacity evaluation revealed that Mr. Reeves demonstrated the ability to possibly perform medium-duty work with restrictions.

As a reviewing court, we may not set aside the WCJ’s findings of fact absent manifest error or unless they are clearly wrong. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). Still, we must do more than simply review the record for some evidence which supports the WCJ’s findings; we must review the record in its entirety to determine whether the WCJ’s findings were clearly wrong or manifestly erroneous. Id.

Reviewing the record in its entirety, it is clear that Mr. Reeves is physically unable to engage in any employment within the meaning of La.R.S. 23:1221(2). While Dr. Kaimal was of the opinion that it was best for Mr. Reeves to return to work doing “something,” he explained: “The thing about me is ... all my statements regarding a person getting a job ... has [sic] to do with ... the belief that a person on total disability doing nothing is much worse off in society and life than a person who does even a small something.... And so, always I will always recommend them to [4do something. Even if they’re totally disabled, they can volunteer for something. ... [Tjhat’s why I always push them to try to get a job....” (Emphasis added.) The doctor couched his opinion regarding Mr. Reeves’ ability to work in terms of “[h]e should try; and if he fails, that’s okay.” However, being physically able to try employment is not tantamount to being physically able to “engage in” employment for purposes of La.R.S. 23:1221(2)(c). See Comeaux v. City of Crowley, 01-0032 (La.7/3/01), 793 So.2d 1215 (interpreting a doctor’s statement that the claimant was unable to work but was encouraged to be as active as possible within the parameters of light and sedentary activities as tolerated to mean that the claimant was physically unable to work). Further, Dr. Kaimal understood the meaning of inability to work to be as follows: “I can say no he can never work. He will never be able to do anything constructive, which is I’m declaring him dead....” As we appreciate Dr. Kaimal’s testimony, a person would have to be dead to be declared totally disabled. Under that standard, no one would ever qualify for permanent and total disability benefits.

Importantly, Dr. Kaimal testified that asthma is sporadic and that a person can have a “daily mild amount of problems” and then can have “severe problems intermittently.” The doctor explained that if an asthma attack is severe, it can be life-threatening, and he noted that Mr. Reeves’ asthma attacks last from two to three days to a few minutes, depending on the severity. Dr. Kaimal testified that when Mr. Reeves has an asthma attack, he has shortness of breath and cannot do anything. Mr. Reeves must take his usual nebulizer treatment, and Dr. Kaimal testified that sometimes he prescribes additional medication when Mr. Reeves has an attack.

According to Dr. Kaimal, many things can trigger an asthma attack, such as “[a] change of weather, a change of pollution level, exposure to chemicals, exposure | sto anything which is irritating, infections,” and smoke. In fact, common chemicals such as chlorine, oven cleaners, and ammonia can precipitate an attack. Even diluted cleaning products can cause some problems, depending on the duration of the use of the products. Further, common cooking activities can trigger an attack, with the doctor giving examples such as frying peppers, barbecuing, and cutting up jalapenos. According to Mr. Reeves, he “can walk by somebody with perfume on and it will trigger an asthma attack.” Moreover, physical activities that do not trigger asthma attacks can nevertheless be problematic for Mr. Reeves, such as lifting anything “below the knuckle level,” because such activities cause him to “get[ ] short of breath,” according to Dr. Kaimal. Additionally, people with asthma are more prone to infection.

Unfortunately, Mr. Reeves’ condition is such that he will have to continue with his medication regime, and “[i]t may never be completely controlled.” Dr. Kaimal was of the opinion that Mr. Reeves was “not going to get any better than this,” and the doctor placed him at maximum medical benefit.

Still, Dr. Kaimal signed off on various jobs for Mr. Reeves, which included jobs as a sandwich artist, deli worker, stocker, auto parts clerk, and sales representative. However, as we appreciate Dr. Kaimal’s testimony, he signed off on the jobs because he was of the opinion that Mr. Reeves should try to do something. The doctor was not sure he could actually do the jobs, but he indicated that it was “worth a shot.” When Mr. Reeves attempted to apply for the jobs listed, he was turned down because of his physical condition. Additionally, when Mr. Reeves did attempt to return to work at other jobs, he was laid off because of his asthma attacks.

|fiWe note that Dr. Shellito was of the opinion that Mr. Reeves could return to work but with restrictions, which included avoidance of “exposure to fumes, dust, strong chemical odors, and extremes of temperature.” Additionally, a functional capacity evaluation demonstrated that Mr. Reeves can possibly perform medium-level work with restrictions of avoiding squatting or crouching, limiting stair climbing, limiting lifting and carrying to medium levels, and no lifting below knuckle level. However, the functional capacity evaluation was submitted by the examiner with the caveat that “FCE’s are generally conducted on individuals who demonstrate limited functioning secondary to musculo-skeletal related problems” rather than “secondary to ... respiratory difficulties.” The examiner explained that cases such as Mr. Reeves’ “become more problematic” and that the examiner “was reluctant to have Mr. Reeves perform to a level which would place maximum stress on his respiratory system.” (Emphasis added.) Thus, the examiner reported that Mr. Reeves was tested for “most activities to an occasional frequency.” (Emphasis added.)

Essentially, while some evidence reveals that Mr. Reeves can theoretically perform some work activity with restrictions, the totality of the evidence demonstrates that, practically, this will be impossible due to the unpredictability of the disease, the list of environmental conditions that can trigger an asthma attack in him, and the limitations on his physical activities. In other words, Mr. Reeves is so environmentally sensitive and physically limited that we cannot envision a work environment where Mr. Reeves could “engage in” employment within the meaning of La.R.S. 28:1221(2)(c). The fact that Mr. Reeves can do limited activities at certain times for limited periods of time does not equate to employment capability. Thus, while there was some evidence to support the WCJ’s conclusion regarding the extent |7of Mr. Reeves’ disability, the totality of the evidence reveals that the WCJ was clearly wrong. Accordingly, we reverse and hold that Mr. Reeves is permanently and totally disabled.

Penalties and Attorney Fees

IMC reduced Mr. Reeves’ temporary total disability benefits to supplemental earnings benefits with a $6.00 per hour wage-earning-capacity base due to a listing of jobs identified for Mr. Reeves. As set forth above, Mr. Reeves is permanently and totally disabled, and IMC should not have reduced his benefits. However, pursuant to La.R.S. 23:1201(F)(2), penalties and attorney fees are not due where the employer reasonably controverts the claim for benefits.

In the instant case, it appears that the $6.00 per hour figure was based on some type of average of the wages applicable to the jobs identified for Mr. Reeves. While the jobs were available when IMC notified Mr. Reeves of the jobs, Dr. Kaimal signed off on the jobs when most were no longer available. Thus, when IMC reduced Mr. Reeves’ benefits, the information it had was stale. Further, Mr. Reeves was turned down for these jobs due to his physical condition and limitations. Accordingly, IMC’s attempt at rehabilitation through the identification of these jobs failed. This information was either known by or at least available to IMC through the vocational rehabilitation consultant well in advance of IMC’s reduction of Mr. Reeves’ benefits. Thus, IMC did not reasonably controvert Mr. Reeves’ claim for benefits.

Because IMC did not reasonably controvert Mr. Reeves’ claim for weekly disability benefits, we award Mr. Reeves $2,000.00 in penalties and $2,000.00 in attorney fees in connection with the reduction in his benefits. Concomitantly, we award Mr. Reeves $1,000.00 in attorney fees for work done on appeal.

^DISPOSITION

For the foregoing reasons, we reverse the judgment below and hold that William Tony Reeves is permanently and totally disabled. We award Mr. Reeves penalties in the amount of $2,000.00 and attorney fees in the amount of $2,000.00 in connection with the improper reduction in benefits. We additionally award Mr. Reeves $1,000.00 in attorney fees for work done on appeal. We assess costs of this appeal to International Maintenance Corporation.

REVERSED AND RENDERED.


text:
    CUNARD LINE LIMITED CO. v. DATREX, INC.
    No. 05-1171.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Antonio J. Rodriguez, A.T. Chenault, IV, Philip C. Brickman, Fowler, Rodriguez & Chalos, Houston, TX, for Plaintiff/Appellant, Cunard Line Limited Co.
    Davis B. Allgood, Daniel B. Davis, Jones, Walker, Waechter, Poitevent, Car-rére & Danégre, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Datrex, Inc.
    Phillip W. DeVilbiss, Scofield, Gerard, Singletary & Pohorelsky, Lake Charles, LA, for Third-Party Defendant/Appellee, Charles M. Holbrook.
    Dan Edward West, Deborah A. Howell, McGlinchey Stafford, PLLC, Baton Rouge, LA, for Third-Party Defendant/Appellee, Stantech, Inc.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   PETERS, J.

| T Cunard Line Limited Co. (Cunard) purchased lighting systems from Datrex, Inc. (Datrex) for installation on its cruise ships. Subsequently, Cunard filed the instant suit against Datrex for damages and attorney fees in connection with alleged problems with the lighting systems. Da-trex filed an exception of prescription, which the trial court granted. Cunard has appealed. At issue in this appeal is whether the one-year prescriptive period for red-hibitory defects applies or the ten-year prescriptive period for conventional obligations applies. For the following reasons, we affirm the trial court’s grant of the exception of prescription.

DISCUSSION OF THE RECORD

Cunard owns a fleet of cruise ships. In order to comply with International Maritime Organization (IMO) regulations requiring the installation of lighting devices to mark passenger escape routes and exits, Cunard sought to equip its cruise ships with low-location lighting (LLL) systems. Datrex was in the business of selling LLL systems, and it advertised, marketed, and promoted its lighting systems to the cruise ship industry.

Datrex submitted proposals to Cunard for several of its cruise ships, which proposals included information about Datrex’s system, recommendations, materials estimates, and the cost of the system. Beginning in 1996 through early 1997, Cunard sent purchase orders to Datrex for the LLL systems for four of its ships, and Datrex supplied the systems to Cunard.

However, according to Cunard, there were “numerous delays” by Datrex in delivering the system components, but the systems were delivered sometime before late 1997. Regarding installation of the LLL systems, Cunard and Datrex had agreed that Cunard would pay additional compensation to Datrex for any installation services 1 ^provided by Datrex, including the training of Cunard’s employees to install the LLL systems. However, Cunard chose to install the LLL systems on the four ships at issue without any assistance from Datrex.

On March 14, 2002, Cunard filed the instant petition for damages and attorney fees against Datrex, alleging that, following delivery and installation of the LLL systems, “numerous problems immediately developed, including, but not limited to, shorting out.” In fact, according to its petition, Cunard was aware of these problems by late 1997. Cunard also alleged that the Coast Guard found the LLL systems to be “non-compliant with safety standards.”

Prior to the filing of Cunard’s suit, Da-trex attempted to address Cunard’s problems with the systems. According to David Mills, Datrex’s executive vice president, his inspection of the systems revealed “some very serious issues with installation” which could have been avoided had Cunard accepted the installation training offered by Datrex. Mr. Mills indicated that proper installation was crucial in order for the LLL systems to work properly. In fact, Mr. Mills testified that Datrex sold the LLL system to Cunard for installation on a fifth ship owned by Cunard and that Cunard paid for installation training for that system; Datrex has not been sued over the system installed on that ship, nor has it been sued on LLL systems sold to other customers.

Datrex ceased its repair efforts in May of 1999. Cunard alleged in its petition that it was compelled to contract with another company to have the Datrex LLL system removed and another LLL system installed on its ships.

Datrex responded to Cunard’s petition by filing various pleadings, including an exception of prescription. In its exception, Datrex asserted that Cunard’s claims lawere barred by the one-year prescriptive period applicable to redhibition and tort claims. Cunard opposed the exception on the basis that the ten-year prescriptive period for contract claims was applicable.

A hearing was held on the exception, and Datrex submitted testimonial and documentary evidence, including Cunard’s opposition to the exception and attached exhibits; Cunard presented no evidence. The trial court found that the contract between Cunard and Datrex constituted primarily a contract of sale such that the claim was subject to the one-year prescriptive period for redhibition actions. Thus, the trial court granted Datrex’s exception of prescription and dismissed Cunard’s claims. Cunard then filed a motion for new trial, which the trial court denied. Cunard has appealed.

OPINION

Louisiana Civil Code Article 2520 provides:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Importantly, an action for redhibition against a seller prescribes in one year from the day the defect was discovered by the buyer, unless the seller did not know of the existence of a defect in the thing sold, in which case the action prescribes in four years from the day delivery of the thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first. La.Civ. Code art. |42534. Thus, under La.Civ.Code art. 2534, Cunard’s claims have prescribed, and Cunard does not argue otherwise.

Rather, on appeal, Cunard argues that La.Civ.Code art. 2524 provides an alternative cause of action for defective products along with an additional prescriptive period of ten years. Louisiana Civil Code Article 2524 provides:

The thing sold must be reasonably fit for its ordinary use.
When the seller has reason to know the particular use the buyer intends for the thing, or the buyer’s particular purpose for buying the thing, and that the buyer is relying on the seller’s skill or judgment in selecting it, the thing sold must be fit for the buyer’s intended use or for his particular purpose.
If the thing is not so fit, the buyer’s rights are governed by the general rules of conventional obligations.

(Emphasis added.)

Under the rules of conventional obligations, La.Civ.Code art. 3499 provides that “a personal action is subject to a liberative prescription of ten years.”

Specifically, Cunard contends on appeal that it alleged in its petition that the Da-trex LLL system was unsuitable for ordinary use in a cruise ship. Further, Cunard contends that it alleged that it relied on Datrex’s skill in selecting the LLL system and that Datrex was aware of Cunard’s particular purpose for the LLL system, i.e., compliance with IMO regulations. Thus, Cunard argues that these allegations bring its claim within the ambit of La.Civ. Code art. 2524.

Cunard did assert in its petition that the LLL systems were “unsuitable for ordinary use in a cruise ship,” but it based this assertion on the “defective design and/or installation” of the systems. Additionally, Cunard alleged in its petition that it “did in fact rely upon DATREX’S skill, judgment and representations regarding the” LLL systems, but again it asserted that the systems were “defective.” Regardless of the language in which Cunard couched its cause of action, it is evident that | sCunard’s cause of action arose out of the allegedly defective condition of the LLL systems. Importantly, Cunard did not contend that a properly functioning Datrex LLL system would fail to meet either IMO requirements or Cunard’s needs or purposes. Rather, essentially, Cunard alleged that the Datrex LLL systems at issue were not suitable for ordinary use or for Cunard’s intended use or particular purpose because they were defective.

Thus, the issue before us is whether La.Civ.Code art. 2524 is intended to encompass the warranty against redhibitory defects so as to provide an additional cause of action for defective products. This issue is res nova for us.

A law shall be applied as written and no further interpretation made in search of the legislature’s intent, when the law is clear and unambiguous and its application does not lead to absurd consequences. La. Civ.Code art. 9; Mallard Bay Drilling, Inc. v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533. It is presumed that no words or provisions in a statute were used unnecessarily and that every word and provision in a statute was intended to serve some useful purpose. Id. Conversely, it is not presumed that the legislature intended any part of a statute to be meaningless, redundant, or useless or that it inserted idle, meaningless, or superfluous language in a statute. Id. Additionally, courts have a duty, if possible, to adopt a statutory construction that harmonizes and reconciles the statute with other statutory provisions. Id. Finally, courts should avoid a statutory construction that creates an inconsistency, when a reasonable interpretation can be adopted that will carry out the legislature’s intention and that does not do violence to the plain words of the statute. Id.

| (¡Louisiana Civil Code Article 2524, regarding fitness for ordinary use and/or for a particular use or purpose, was added by 1993 La. Acts No. 841, § 1, effective January 1, 1995. Revision Comment (a) to the Article states: “The Louisiana jurisprudence has recognized the existence of [the seller’s obligation of delivering to the buyer a thing that is reasonably fit for its ordinary use] although, in most instances, it has been confused with the warranty against redhibitory vices.” (Emphasis added.) Further, Revision Comment (b) to La.Civ.Code art. 2524 provides: “Under this Article when the thing sold is not fit for its ordinary use, even though it is free from redhibitory defects, the buyer may seek dissolution of the sale and damages, or just damages, under the general rules of conventional obligations. The buyer’s action in such a case is one for breach of contract and not the action arising from the warranty against redhibitory defects.” (Emphasis added.)

It is apparent that the legislature intended by Act 841 to address and clarify any confusion between the warranty against redhibitory defects and the warranty of fitness for ordinary use and/or for a particular use or purpose by enacting La.Civ.Code art. 2524 as a separate and distinct Article from La.Civ.Code art. 2520. It would appear superfluous or redundant for the legislature to have enacted two warranty statutes addressing the same subject matter, with no mention or indication of its reasoning for the overlap, such as to provide for an election of remedies and prescriptive periods. In fact, Act 841 additionally enacted La.Civ.Code art. 2529, which provides: “When the thing the seller has delivered, though in itself free from redhibitory defects, is not of the kind or quality specified in the contract or represented by the seller, the rights of the buyer are governed by other rules of sale and conventional obligations.” Thus, it appears that the legislature intended to | ^separate and categorize three different types of warranties applicable to sales rather than to have all such warranties defaulted into the category of the warranty against redhibitory defects. Accordingly, we conclude that La.Civ.Code art. 2524 applies to a situation in which the cause of action is based, not on the defective nature of the thing at issue, but on its fitness for ordinary use and/or for a particular use or purpose.

Because Cunard’s cause of action is based on the allegedly defective nature of the LLL systems, it is limited to the prescriptive period for redhibitory defects and may not avail itself of the ten-year prescriptive period for conventional obligations. Thus, the trial court did not err in granting Datrex’s exception of prescription.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court granting Da-trex, Inc.’s exception of prescription. We assess costs of this appeal to Cunard Line Limited Co.

AFFIRMED.


author: AMY, Judge.

text:
    Shaunn Caillier McCORVEY v. Derriel Carlton McCORVEY.
    No. 05-1173.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Alex L. Andrus, III, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Plaintiff/Appellee, Shaunn Caillier McCorvey.
    Glenn J. Labbe’, Lafayette, LA, for Defendant/Appellant, Derriel Carlton McCor-vey.
    Derriel Carlton McCorvey, Lafayette, LA, pro se.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

It The defendant was found in contempt of court for failing to comply with a child support order. The defendant was ordered to pay the arrearage within thirty days or spend thirty days in jail. He was also ordered to pay attorney’s fees, and his hunting and fishing licenses were suspended. The defendant filed a notice of intention to apply for emergency writ, mandamus, and prohibition with a request for the trial court to stay execution of its rulings. The trial court denied this request. The defendant subsequently filed a writ and motion and order to stay the trial court’s oral reasons for judgment, which were denied. The defendant has perfected this appeal. For the following reasons, we affirm the finding of contempt and deny the motion to reduce child support.

Factual and Procedural Background

The record indicates that after approximately ten years of marriage, the plaintiff, Shaunn Callier-MeCorvey Harden (hereinafter “Harden”), and the defendant, Der-riel C. McCorvey (hereinafter “McCor-vey”) divorced. On November 8, 2002, McCorvey was ordered to pay interim child support payments of $673.00 per month. Harden subsequently filed a motion to set final child support. A hearing was held in December 2004, and a judgment was rendered on January 25, 2005, in which McCorvey was ordered to pay $1,544.87 per month in child support “retroactive to the date of filling[sic] suit on June 24, 2002[.]” The trial court determined that McCorvey owed $27,027.97 in arrearage and ordered that he make monthly payments of $500.00 per month plus legal interest until paid.

| ^McCorvey filed an appeal of the January 25, 2005 judgment with this court. The record then reveals that on February 22, 2005, Harden filed a rule for past due support, contempt, and attorney’s . fees. McCorvey filed a motion to decrease child support on March 9, 2005. In response, Harden filed exceptions of res judicata, no cause of action, and lack of jurisdiction. On April 22, 2005, a hearing was held on both the rule for past support, contempt, and attorney’s fees and the motion to decrease child support. The trial court declined to hear McCorvey’s motion, stating that it did not have jurisdiction over the matter. Finding McCorvey “guilty of intentional, purposeful civil contempt with no justifiable excuse,” the trial court ordered him to pay “arrearages with interest within thirty (30) days from April 22, 2005” or otherwise serve thirty (30) days in jail. He was also assessed with attorney’s fees, and his hunting and fishing licenses were suspended.

On April 29, 2005, McCorvey filed a notice of intention to apply for emergency writs of certiorari, mandamus, and prohibition and for stay. The request for stay was denied. He filed his writ with a request for expedited consideration and request for stay, which this court denied. He now appeals, asserting two assignments of error:

1. The trial court erred in holding Der-riel McCorvey in contempt of court without justifiable excuse when McCorvey made child support payments based upon his actual income.
|⅞2. The trial court erred in refusing to ■ hear McCorvey’s Motion to Reduce Child Support despite McCorvey’s allegations that a change in circumstances existed that would warrant a reduction in the child support order even though McCorvey is appealing the January 25, 2005 judgment on final child support.

Discussion

Contempt of Court

In his brief submitted to this court, McCorvey questions the circumstances surrounding the award for final child support. He states that although the hearing was held in December 2004, the trial court “set a discovery cutoff date of May 2004 for the Partiesf] income and expense documentation.” As such, the trial court did not examine his documentation from June 2004 to November 2004, which McCorvey contends was crucial in assessing his monthly income. He argues that because he made child support payments based upon his actual monthly’ income of $2,950.00 and not $7,500.00 as the trial court determined, the trial court erred in holding him in contempt of court without a justifiable excuse.

Louisiana Code of Civil Procedure Article 221 provides:

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.
Contempts of court are of two kinds, direct and constructive.

Constructive contempt is defined as “any contempt other than a direct one.” La. Code Civ.P. art. 224. “Willful disobedience of any lawful judgment, order, mandate, writ, or process of the court” constitutes constructive contempt. Id. In Sonnier v. Town of Vinton, 99-927, p. 3 (La.App. 3 Cir. 12/22/99), 759 So.2d 818, 820, the court stated:

|4To find a person or entity guilty of constructive contempt, it is necessary to find that he or it violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. In making this determination, the trial court is vested with great discretion. City of Kenner v. Jumonville, 97-125, 97-210, 97-602 (La.App. 5 Cir. 8/27/97); 701 So.2d 223, writ denied, 97-2890 (La.1/30/98); 709 So.2d 718, cert. denied 524 U.S. 953, 118 S.Ct. 2371, 141 L.Ed.2d 739 (1998); Reeves v. Thompson, 95-0321 (La.App. 4 Cir. 12/11/96); 685 So.2d 575. The manifest error rule is used when appellate courts are called to review the propriety of civil contempt orders. Parish of Jefferson v. Lafreniere Park Found., 98-345 (La.App. 5 Cir. 9/15/98); 720 So.2d 359; writ denied, 98-2598 (La.10/28/98); 723 So.2d 965.

On cross-examination, McCorvey testified that he did not choose to disobey the trial court’s order to pay child support for November and December 2004. He explained: “I didn’t receive a fee after October of 2004. I received no money, no earned income from my law practice or from any other source for the month Of November or December of 2004 .,. yet, I still found a way to pay her something.” We reference the fact that, in the previous case, McCorvey’s motion for reduction in child support was set for December 2004, and he requested a substantial reduction at that hearing.

McCorvey testified that because of his lack of income, he “had to take money from [his] line of credit ... to appeal the decision that — ordering me to pay $2000.00 a month combined.” He also stated that he had to procure a loan to comply with an order from the trial court. In December 2004, he was ordered to pay $5,000.00 cash as a deposit to an attorney because he would not timely submit his records. McCorvey explained that he posted the $5,000.00 bond because he did not want to go to jail. However, when the trial court returned the money to him, he “immediately took it and put it right back onto [his] line of credit, because it was jacking up [his] monthly payments and causing [him] problems there.” McCorvey did not use the | y$5,000.00 to pay $396 in delinquent child support remaining owed for November and December 2004. According to Harden, instead of paying the required $673.00 for each of those two months, McCorvey paid $450 and $500 respectively.

The final judgment for child support was rendered on January 25, 2005, in which McCorvey was ordered to pay $1,544.87 per month in child support plus $500.00 per month in arrearage. Harden testified that for the months of January through April 2005, McCorvey only paid $500.00 per month in child support.

In finding McCorvey in contempt of court, the trial court explained:

■In these proceedings, I find that there was a knowing failure to make payment as ordered by .the court. And it was intentional. I mean, he said he did it. The question is whether it was done without a justifiable excuse. And I’m going to proceed in this case as if it is a civil contempt and not a criminal contempt. He was able to borrow money to pay Mr. Ortego, as ordered by the court. Which means he had a means of securing money to pay his full child support obligation as ordered by the court. Which means that having that avenue available to him, there was no justifiable excuse for not paying. Consequently, I find that there was a — he was engaged in conduct which arises — rises ■ to the level of a'civil contempt.

Considering the evidence before us, we find no error in the trial court’s determination that McCorvey “intentionally, knowingly' and' purposefully, without justifiable excuse” failéd to fully comply with the child support orders. Therefore, we find no merit in this assignment of error.

Reduction of Child Support

, In his brief submitted to this court, McCorvey asserts that in his motion to decrease child support, he “alleged that his support order should be reduced since the trial [court] failed to consider seven (7) months of his income ... [as it] set a discovery cutoff date of May 2004 for the Parties[’] , income . and expense 1 sdocumentation.” McCorvey argues that he “was assessed a- monthly income of $7,500[.00] when the final support order was rendered, despite the fact that this amount was not supported by documentation.”

McCorvey contends that even though that matter is separately on appeal, the trial court erred in refusing to hear his present motion to reduce child support. He questions this ruling insofar. as “on April 22, 2005, there was an additional four (4) months of earnings evidence that also established a change in circumstances that was submitted in the contempt hearing on that day.” He argues that although he was initially assessed with a monthly income of $7,500.00, he provided the trial court with documents showing that “he earned only $2,950[.00] per month this year[.]” McCorvey contends that “[t]his clearly demonstrates a substantial change in circumstances.”

After reviewing McCorvey’s motion to reduce child support and his brief submitted to this court, we note that McCorvey refers to two time periods, in which he challenges the trial court’s determination regarding his income and, therefore, the correctness of his child support obligation. We find an important distinction between the relevant time periods:

McCorvey first refers to the December 2004 hearing in which the trial court set a discovery cutoff date of May 2004 for any documentation regarding McCorvey and Harden’s income and expenses. In his March 9, 2005 motion to decrease child support, McCorvey “avers that circumstances have changed to such a decree [sic] and extent since the discovery cutoff date [of] May 2004 for submission of the Parties’ income and expense documentation, such that mover is unable to pay child support [ 7and arrears at that rate awarded in the January 25, 2005 [judgment] and is entitled to a decrease in child support.”

With regard to the time period of May 2004 to the date of the judgment on January 25, 2005, we find that the trial court did not err in declining to hear McCorvey’s motion to reduce child support as this issue was already adjudicated and on appeal to this court under docket number 05-889. In fact, as we have noted, that appeal has now been decided. See McCorvey v. McCorvey, 05-889 (La.App. 3 Cir. 2/1/06), 922 So.2d 694.

Our attention then turns to the second time period addressed by McCorvey. McCorvey alleges “that his circumstances have changed to such a degree and extent since the January 25th [2005] judgment that he has justifiably been unable to pay the child support and arrearages previously ordered.”

During the hearing on April 22, 2005, McCorvey introduced into the record evidence regarding his income and expenses. Although the trial court stated that it “will consider evidence from the date that he signed the judgment in this matter, the one that’s on appeal, until today’s date regarding [his] income,” it only used that evidence “as a mitigating factor to determine whether or not [McCorvey’s] in contempt.” In declining to hear McCorvey’s motion for reduction of child support, the trial court explained:

The Children’s Code is very explicit, and it’s more explicit than the article dealing with suspensive appeals and devolutive appeals in the Code of Civil Procedure. [Louisiana Children’s Code Article 336 p]aragraph C says that a suspensive appeal shall not suspend the execution of the judgment insofar as the judgment relates to custody or child support. That simply tells me once that issue goes on appeal I can’t touch it. The figure that’s on appeal right now is the figure that you’re asking me to modify. I don’t have jurisdiction to do that. What | syou’re asking me, in effect, to do is to give you a backdoor suspensive appeal, which I can’t do.... I can’t modify a figure that I don’t know what it is right now. And that will be done by the court of appeals and maybe the Supreme Court. Once that figure becomes final, then you can attack that figure if they’ve said, ‘Tes, Judge McGee made you pay too much.” But they may say you weren’t made to pay enough and then we’re in a completely different boat. So my position is right now I am not going to touch any figures that were fixed by Judge McGee.... This can all be undone. As you say, it’s never final. This can all [b]e undone, but that won’t happen until the appellate court acts on your appeal right now on what Judge McGee did.

We conclude that the trial court erred in refusing to hear McCorvey’s motion for reduction of child support as it relates to the time period subsequent to the previous adjudication on January 25, 2005. McCor-vey filed his devolutive appeal of that decision prior to filing his motion for reduction of child support on March 9, 2005. In that motion, McCorvey sought a reduction in child support from the date the judgment was rendered on January 25, 2005. He alleged that since that date, his circumstances have changed to a such a degree and extent that he cannot pay child support and arrearage. Accordingly, we find that the trial court had jurisdiction to hear McCorvey’s motion as this particular issue was not the subject of the prior decision or appeal. McCorvey’s prior appeal was necessarily limited to those issues under consideration, including the amount of child support awarded, in the January 25, 2005 judgment.

Although the trial court erred in not considering this second time period, we will review the matter as we have the complete record before us. See Price v. Roy O. Martin Lumber Co., 04-227, p. 11 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, 824 (“where a legal error interdicts the fact-finding process and the record is otherwise complete, an appellate court should then conduct a de novo review of the record in | ^rendering its decision.”). We, therefore, examine whether McCorvey is now entitled to a reduction in child support based on the applicable time frame.

Louisiana Revised Statutes 9:811 provides in pertinent part:

A. An award for support shall not be ■ reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.

“This implies that the parties must return to court with their evidence.” Walker v. Walker, 02-606, p. 3 (La.App. 3 Cir. 12/4/02), 832 So.2d 1098, 1101. The court explained:

Furthermore, La.R.S. 9:311’s COMMENT (A) provides that a reduction or increase in child support must be supported by a change in circumstances which is material. It defines material as:
[A] change in circumstance having real importance or great consequences of the needs of the child or the ability to pay of either party. The amendment specifying that the court first consider the threshold matter of materiality of the change in circumstance overrules Stogner v. Stogner, 739 So.2d 762 (La.1999), in which the Louisiana Supreme Court held that any change in circumstances is sufficient to justify a reduction or increase in child support, a conclusion extended to spousal support by the court of appeal in Council v. Council, 775 So.2d 628 (La.App. 2 Cir.2000).

Id. (Emphasis added).

In accordance with La.R.S. 9:311, McCorvey was required to show a material change in circumstances between the time of the previous award and the time of the motion for modification of the award. McCorvey presented evidence outlining his expenses and reported income. He prepared a financial summary which indicates that he earned $2,950.00 per month for January 2005 to April 2005. Our only indication of what McCorvey earned in 2004 is ascertained from his testimony during the April |in22, 2005 hearing. McCorvey alleged that he earned $36,000.00 for 2004. According to the testimony presented, his monthly income has not decreased significantly from 2004 to 2005 but rather has remained unchanged. Furthermore, we find nothing in the record that supports McCorvey’s argument that there has been a change in circumstances from January 25, 2005 to March 9, 2005, when his motion was filed. In sum, McCorvey’s assertions as to means, both before and after the period under consideration in the present motion, were substantially similar. After reviewing the evidence, we conclude that there has not been a material change in circumstances so as to entitle McCorvey to a reduction in his child support obligation.

Accordingly, McCorvey’s motion to reduce child support is denied.

DECREE

For the foregoing reasons, the judgment of the trial court finding McCorvey in contempt of court is affirmed. After conducting a de novo review on McCorvey’s motion to reduce child support, we find that he has not shown a material change in circumstances; therefore, his motion is denied. All costs of these proceedings are assessed against the defendant, Derriel C. McCorvey.

AFFIRMED; MOTION TO REDUCE CHILD SUPPORT DENIED.

      . We note that although that appeal has now been decided, the opinion has not yet been released for permanent publication in the law reports. In that decision, this court adjusted McCorvey’s total monthly child support award from $1,544.87 to $1,198.26, with credit for any overpayments he may have made. Furthermore, the award of $27,027.97 in arrearage was reversed. McCorvey v. McCorvey, 05-889 (La.App. 3 Cir. 2/1/06), 922 So.2d 694.

      . We note that McCorvey alleged in his prior appeal that he earned $3,038.54 per month or $36,462.50 in annual income for the year 2004. This figure was highly contested in the previous McCorvey, 922 So.2d 694, in which this court recently concluded that, based on the evidence presented, the trial court's determination that McCorvey had misrepresented his income and that his monthly income was $7,500.00 was not manifestly erroneous. There is no evidence before us which would cause us to reevaluate that finding.


author: PICKETT, J.

text:
    Albert L. ROBERTS, Jr., et ux. v. HARTFORD FIRE INS. CO., et al.
    No. 05-1178.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    Kay H. Michiels, Walker, Passman & Michiels, Alexandria, LA, for Defendants/Appellants, Brookshire Grocery Company and Nutmeg Insurance Company.
    Wesley J. Gralapp, Neblett, Beard & Arsenault, Alexandria, LA, for Plaintiffs/Appellees, Albert L. Roberts, Jr. and Judy Roberts.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, J.

hThe defendants, Brookshire Grocery Company (Brookshire), d/b/a Super One Foods (Super One), and its insurer, Nutmeg Insurance Company (erroneously referred to as Hartford Fire Insurance Company), appeal a judgment of the trial court finding them liable for damages the plaintiff, Judy Roberts, sustained as a result of a slip and fall in the Pineville, Louisiana Super One store on October 6, 2002, and Albert L. Roberts Jr., Mrs. Roberts’ husband, for loss of consortium. We reverse the judgment of the trial court and render judgment in favor of the appellants.

FACTS

The following facts in this ease are un-controverted. Mrs. Judy Roberts slipped and fell in a puddle of water on the floor of Super One Foods in Pineville on October 6, 2002, at approximately 8:40 p.m. The puddle was near the bakery section of the store and resulted from the over-flow of a blocked drain underneath a refrigerated display case.

LAW AND DISCUSSION

In its written reasons for judgment, the trial court stated the following:

In their original post-trial briefs, the parties discussed the applicability of La. R.S. 9:2800.6 to the facts of this case. On its own motion, the Court requested that the- parties submit supplemental briefs on the applicability of La.C.C. art. 2317.1 instead. The Court believes and both parties agree [We find no evidence that the defendants ever agreed that the burden of proof established by La.R.S. 9:2800.6 is inapplicable to this case.] that since this is a defect “in the premises” and not “on the premises,” Brookshire’s liability is governed by La.C.C. art. 2317.1, which provides as follows:
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice or defect, only upon showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he ^failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitor in an appropriate case.

We find that the trial court’s reliance on La.Civ.Code art. 2317.1 was legal error. Louisiana Revised Statutes 9:2800.6 states as follows (emphasis ours):

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors ih a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s ■premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, | ^including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

The rules of statutory construction are well settled: “Pursuant to general rales of statutory construction, ‘where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.’” Filson v. Windsor Court Hotel, 04-2893, p. 4 (La.6/29/05), 907 So.2d 723, 726 (quoting City of Pineville v. Am. Fed’n of State, County, and Mun. Employees, AFL-CIO, Local 3352, 00-1983, p. 4 (La.6/29/01), 791 So.2d 609, 612). Since La.R.S. 9:2800.6 deals specifically with “a negligence claim brought against a merchant ... for damages as a result of an injury ... sustained because of a fall due to a condition existing in or on [the defendant] merchant’s premises” it must be applied and the application of any other law was a reversible error of law.

“[W]hen the court of appeal finds that a reversible error of law ... was made in the trial court, it is required, whenever possible, to redetermine the facts de novo from the entire record and render a judgment on the merits.” Ferrell v. Fireman’s Fund Ins. Co., 94-1252, p. 4 (La.2/20/95), 650 So.2d 742, 745 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989) and Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975)). Thus we must undertake a de novo review of the record.

Mrs. Roberts testified that she and her husband were on the way home from her brother’s house when she remembered that she was out of coffee creamer. The couple decided to stop at Super One. Mr. Roberts remained in their vehicle while | ¿Mrs. Roberts went into the store. She stated that since she was just going for one item, she left her purse in the truck and just took a five dollar bill with her into the store. Mrs. Roberts stated that she

“walked straight to the back of the store, took a left, [and] went to the dairy center. Got my milk, came around.... — I don’t know why I didn’t go back the same way I came in, but I came back around the bakery' — the— some counter that had some cakes and stuff on it, and after that, the next thing I remember I was on the floor.”

Mrs. Roberts testified that before her fall she saw no spills, no “Wet Floor” signs, mop buckets, or the like. She stated that assumed that the puddle in which she slipped was water because it was wet and clear. She testified that after the fall her feet, but not her clothes, were wet.

At the time of the accident, Dean Sehwieso, a friend of the Roberts, was shopping near the area where Mrs. Roberts fell. He testified that he did not see her fall but heard a “pretty loud” thump as she hit the floor. Mr. Sehwieso immediately went to the area. When asked if he noticed anything which may have caused Mrs. Roberts’ fall, he replied: “[I]t looked like a stream of water with a kind of puddle area there by the display. [Tjhere was like a stream of water going from that [display case], from underneath there.” Mr. Sehwieso stated that he could not remember the size of the puddle, and, to the best of his recollection, the puddle was clear and clean, and free of footprints or buggy tracks.

Albert Roberts, the husband of the victim, was summoned to the scene by a Super One employee. He also stated that the puddle was clear and clean. He estimated that it came out two to two-and-one-half feet from the cooler. Mr. Roberts testified that he could not remember the presence of footprints, buggy tracks or dirt | fiin the puddle stating: “I didn’t really look for them.” He further stated that he had no idea how long the puddle had been on the floor.

Darlene Patín, a bakery clerk, was working in the area at the time of the accident. Ms. Patín testified that Hurricane Lily had recently come through the Pineville area dumping excessive amounts of rain. The copious rainfall resulted in leaks in the Super One roof in the bakery department area. Ms. Patín stated that, upon reporting for work on the day of the accident, she had been instructed by Vickie Brown, her department head, to keep a sharp look-out for water on the floor and to “keep the water up.” She also stated that, because of the leaky roof, she had placed “wet floor signs so they could be visible at all angles” throughout the bakery department. In connection with her testimony, Ms. Patín produced a drawing which was placed into evidence. The drawing showed the area from the meat department, on one side of the bakery department to the cooler in front of which Ms. Roberts slipped and fell. It depicts an area of twelve tables arranged in three rows of four tables each with six warning signs inter-dispersed among the tables. At least one of these signs appears to be within ten feet of where Ms. Roberts fell.

Ms. Patín testified that she was on the opposite side of the bakery department, near the meat department, when Mrs. Roberts fell. She stated that she did not see Mrs. Roberts fall, but did hear her hit the floor. Ms. Patín went to Mrs. Roberts’ aid and summoned other Super One employees to the scene. She explained that for the prior two hours she had been in and out of the freezer pulling merchandise and putting it on display. She said that she had not noticed a puddle in front of the cooler where Mrs. Roberts fell, and that, if she had, she would have placed a safety cone over the puddle until it could be cleaned up. As to the puddle, itself, Ms. Patín 1 described it as about the size of “one of our baking pans.... I want to say it was about 12" x 16", but that would have covered the entire spot.” She described it further as being hard to see— clear and clean and “[b]etween the lighting and the floor color and all, you just couldn’t see it.” She also testified that she did not observe any footprints or buggy tracks through the puddle and that she was not aware of any problem with the floor drain either before or since the accident.

Alphonso Lenyard, the assistant manager of the Pineville Super One, one of the people summoned by Ms. Patín was in the main isle near the meat department at the time of the accident. He also heard Mrs. Roberts hit the floor and was on the way when Ms. Patín called to him. When he arrived at the scene, he observed Mrs. Roberts in obvious pain and after consulting with her summoned an ambulance. He also described the puddle as clean and clear. Mr. Lenyard subsequently discovered that the puddle in which Mrs. Roberts fell was the result of a clogged drain. He used a coat-hanger to clear the clog and then checked all the drains in the store, just to make sure they “didn’t have any other problems anywhere else.” He stated that this was the first time in fifteen years with the company that he had checked any drain. He explained that Brooksire’s department in Tyler, Texas was responsible for drain maintenance and that “every year somebody comes and cleans the drains.” He stated that to the best of his knowledge this was the only drain problem the store had encountered. The plaintiffs then introduced a number of service invoices from Andrew Refrigeration for work done at that store both before and after this accident. The nature of the work reflected by these invoices was subsequently explained by Michael Gregory, the refrigeration and equipment warehouse manager for Brookshire Grocery Company at its Tyler, Texas facility.

|7The plaintiffs next called James Pate Jr., a plumbing contractor. He inspected the drain which caused the accident and took numerous photographs of the accident scene. He stated that the drain in question was a pit drain, took measurements and determined that if the drain became clogged it would hold 7.48 gallons of water before it would overflow. He noted that there was a solid cover on the drain and opined that a grated cover would make inspecting the drain easier. He said that he recommended grated covers to his customers. Mr. Pate testified that refrigeration drains were prone to algae growth, which can stop-up the drain. On cross examination, he admitted that he had no experience installing refrigeration drains, that he couldn’t attribute the clog in the Super One drain to algae build-up, and that although he did work for Albertson’s and Kroger he neither did regular maintenance on their floor drains nor provided any regular drain service.

The last witness to testify was Michael Gregory, who we mentioned earlier. Mr. Gregory has a degree in air conditioning and refrigeration and is a licensed air conditioning, refrigeration, heating, and cooling contractor in both Texas and Arkansas. Mr. Gregory was instrumental in building the Pineville Super One store and was present when the refrigeration equipment was installed. He explained that Brook-shire used pit drains because they were almost trouble free, requiring very little maintenance. He reviewed the service invoices from Andrew Refrigeration, explaining the problem and remedy on each invoice. Several were for stopped up case drains. Two were for stopped up air conditioning drains. One was for a stopped up drain in the area where meat is prepared. Only one call involved a stopped up floor drain. He stated that Brookshire has an independent company, Martin Refrigeration, to service all of its stores and that the stores are serviced on a rotating |8basis. Martin comes in and cleans all the refrigeration equipment, coils, fixture drains, floor drains, etc. The rotation takes about twelve months.

Mr. Gregory agreed with Mr. Pate that the pit on the floor drains would hold about 7.48 gallons of water. He stated that the 7.48 gallons of water in a pit would exert over fifty pounds of pressure on any clog and, thus, were for the most part self cleaning. This he explained is why Brookshire used pit drains rather than hub drains even though the average price of a pit drain, $378.00, far exceeds the average price, $70.00, of a hub drain. He also stated that he disagreed with Mr. Pate on the algae issue, explaining that algae takes sunlight to grow and all the Super One drain pits were dark, as they were covered. Further, he disagreed about the use of grated covers, being of the opinion that they caused women in heels to fall and allowed excessive debris to get into the drain.

Mr. Gregory explained that the units were set to defrost three times a day and that when the unit went into the defrost cycle it would produce one-and-one-half to two gallons of water. The rest of the day, the unit would be in a drip cycle and produce about two gallons of additional water. Although, he couldn’t say for sure, Mr. Gregory believed that the unit involved in the accident went into the defrost cycle between 8:00 p.m. and the time of the accident (approximately 8:40 p.m.).

Since there is no allegation that either a Super One employee created the puddle or that Super One had actual knowledge of the puddle, we must determine if Super One should have reasonably known, i.e., had constructive notice, of the puddle. In Cohen v. Brookshire Bros., Inc., 04-916, p. 4 (La.App. 3 Cir. 11/10/04), 887 So.2d 681, 683-84, writ denied, 04-3041 (La.2/18/05), 896 So.2d 38, this court stated:

The Louisiana Supreme Court examined this definition of constructive notice in White v. Wal-Mart Stores, Inc. 97-0393 (La.App. 3 Cir. 9/9/97), 699 So.2d 1081. The court identified a “temporal element,” stating that in addition to the plaintiffs burden to prove that the hazard existed at the time of the accident, “[t]he claimant must make a positive showing of the existence of the condition prior to the fall.” Id. at 1084. The supreme court further explained that a claimant who simply shows that the condition exists, without the additional showing that it existed for some time before the fall, does not carry the burden of proving constructive notice required by the statute. Id. “Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall.” Id. at 1084-85. The plaintiff may use circumstantial evidence to establish the temporal element. Henry v. Wal-Mart Stores, Inc. 99-1630 (La.App. 3 Cir. 3/1/00), 758 So.2d 327, writ denied, 00-929 (La.5/26/00), 762 So.2d 1107.

The proof of constructive notice is not a clear cut issue. Our colleagues of the second circuit offered the following guidance:

To prove constructive notice, the plaintiff must show that the substance remained on the floor for such a period of time that the defendant would have discovered it by the exercise of ordinary care. Allen v. Wal-Mart Stores, Inc., 37,352 (La.App.2d Cir.06/25/03), 850 So.2d 895, 898. Louisiana R.S. 9:2800.6 does not allow for the inference of constructive notice absent some showing of this temporal element. Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Id.
In Allen, supra, the plaintiff failed to present any evidence that anyone noticed the presence of the liquid on the floor prior to the accident. Nor did the plaintiff present any evidence as to the condition of the liquid after the fact that would suggest that it had been there for some period of time, such as that some areas of the spill had dried, that shopping cart tracks or footprints were in the liquid, or that the liquid was dirty. Furthermore, in Allen we rejected the plaintiffs argument that attempted to link the size of the spill [six to seven feet long] with the length of time the spill had existed prior to the accident. Because the plaintiff presented no evidence as to the origin or state of the spill, we concluded that the inference the plaintiff asked the court to draw was merely one possibility that was no more likely than any other potential scenario. Id.

Howard v. Family Dollar Store No. 5006, 40,282, pp. 5-6 (La.App. 2 Cir. 10/26/05), 914 So.2d 118, 121 (emphasis in original).

Although the cause of the puddle in which Mrs Roberts fell was determined, there was no proof offered to support a conclusion that “the condition existed for some time before the fall.” No proof was offered as to any footprint or buggy tracks in the water. The water was described as clear and clean by all the witnesses who observed it and the size of the puddle, less than the size of a baking pan (12 x 16 inches; much smaller than the spill in Allen) all tend to support a conclusion that the puddle had not been on the floor very long, certainly not “for such a period of time that the defendant would have discovered it by the exercise of ordinary care.”

Accordingly, for the reasons stated, the judgment of the trial court is reversed and judgment is rendered in favor of the defendants Brookshire Grocery Company and Nutmeg Insurance Company. All costs of this proceeding are taxed against the plaintiffs, Judy and Albert Roberts.

REVERSED AND RENDERED.