author: THOMAS F. DALEY, Judge.

text:
    Ramona SYNIGAL v. VANGUARD CAR RENTAL.
    No. 06-CA-761.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Kenneth W. Andrieu, Kenneth W. An-drieu & Assocs., Metairie, Louisiana, for Plaintiff/Appellee.
    Jeffrey C. Napolitano, Juge, Napolitano. Guilbeau, Ruli, Frieman & Whiteley, Me-tairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   THOMAS F. DALEY, Judge.

LThe employer has appealed the judgment in favor of claimant in this workers’ compensation lawsuit. For the reasons that follow, we reverse in part and affirm in part.

FACTS:

The claimant, Ramona Synigal, was employed by defendant, Vanguard Car Rental, as a service agent. On June 24, 2004, she was sitting in a car on her employer’s lot waiting to drive that car into the car wash when she was rear ended by another employee. She was taken to the hospital where she was treated for lumbar strain. She then sought treatment from a physician recommended by her employer and later from an orthopedist, Dr. James Baker. From her return to work on June 26, 2004 until her termination on July 14, 2004, she worked “light duty” as instructed by her physicians. On September 27, 2004, Dr. Baker noted that he determined claimant had reached maximum medical improvement on September |¾21, 2004 and had no permanent impairment. She filed a disputed claim for compensation on August 9, 2004.

Defendant denied that claimant was due compensation benefits after her termination for cause. Following a trial, the workers’ compensation judge (WCJ) found in favor of claimant, awarding benefits. The WCJ further found that defendant was arbitrary and capricious and awarded penalties and attorneys’ fees. This timely appeal followed.

DISCUSSION:

On appeal, defendant argues the trial court erred as a matter of law in finding that an employee, who returns to work within the physical restriction set by her treating physician, and without a wage loss, is entitled to worker’s compensation benefits when the employee is fired for cause. Thus, the sole issue to be decided by this appeal is whether claimant was entitled to workers’ compensation indemnity benefits between the time she was terminated for cause, July 14, 2004, and the date she was found by her treating physician to have reached maximum medical improvement and had no permanent impairment, September 21, 2004.

The determination of whether an employee is entitled to workers’ compensation benefits is based on the facts and circumstances of each case, taking into consideration that the laws governing workers’ compensation must be construed liberally in favor of the employee. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). An appellate court cannot set aside the factual findings of the WCJ unless those findings are clearly wrong and the judge has committed manifest error. Lacaze v. Alliance Compressors, 03-1566 (La.App. 3 Cir. 4/14/04), 870 So.2d 1150.

|4If the appellate court finds that a WCJ has committed legal error, and there is a complete record, the appellate court is to conduct a de novo review. Grillette v. Alliance Compressors, 05-982 (La. 3 Cir. 2/1/06), 923 So.2d 774. Having found the trial court committed legal error by awarding benefits to claimant who was provided with a job that accommodated her work restrictions and was then terminated for cause, we will conduct a de novo review.

Claimant testified that when she returned to work after the accident, she worked inside in the office checking brake tag stickers for the cars. She was then placed outside and told to inspect the cars coming out of the car wash to be sure they were clean. She explained that this entailed sitting in a chair under an umbrella and occasionally getting up. Claimant was paid her pre-injury wage. Claimant testified that she engaged in a verbal altercation with her supervisor on July 14, 2004. On that date she was sitting outside by the car wash when Ms. Diane Howington, claimant’s supervisor, approached and asked her to come inside to “do some paperwork that had backed up.” Claimant testified that she attempted to explain that she did not want to go inside to do this work, but Ms. Howington was insistent that she do so. A verbal altercation ensued and claimant admits to cursing at Ms. Howington. Claimant was initially suspended for two days while defendant conducted an investigation into the incident. Written statements detailing the incident were written by claimant, Ms. Howington, as well as two other employees, and were admitted into evidence. These statements reiterate the incident wherein claimant yelled and used profanities directed at her supervisor, Ms. Howington. Claimant’s records from the Department of Labor were introduced into evidence. These records indicate that claimant was aware that defendant had a policy “do not curse” and that she violated this policy. Claimant testified as follows regarding her firing by defendant:

|fiQ .... why were you fired from Vanguard?
A. Why was I fired from Vanguard:
Q. Yes
A. Because I told Diane to kiss my behind. But I didn’t tell her in that phrase.
Q. What phrase did you use?
A. I told her to kiss my ass.
Q. That was your supervisor, right?
A. Yes, it was.
Q. She was asking you to come inside to work indoors, right?
A. Correct.
Q.... Did she tell you to do any heavy lifting?
A. Do she — No, she didn’t.
Q. Did she in any way tell you to violate your doctor’s orders?
A. No.

The above testimony, in addition to the evidence submitted by defendant surrounding claimant’s firing, make it clear that claimant was fired from Vanguard with cause for violating company policies against insubordination and using profanities. The firing was completely unrelated to claimant’s injury and light duty status.

As the Third Circuit held in Palmer v. Alliance Compressors, 05-478 (La.App. 3 Cir. 11/2/05), 917 So.2d 510, and reiterated in Gñllette, supra, an employer cannot avoid paying compensation benefits to an injured employee by creating a job that accommodates the injured employee’s work restrictions and then firing the injured employee; nor can an injured employee refuse to accept suitable employment or violate company policy without the possibility of recourse by the employer. It would be contrary to public policy to force an employer to pay workers’ compensation benefits to an employee who has been provided employment that meets his work restrictions and who is later fired for cause by blatantly violating his employer’s policies.

For the foregoing reasons, the portions of the WJC judgment (1) ordering claimant is entitled to the payment of temporary total disability benefits from June 24, 2004 through September 28, 2004, (2) finding defendants to be arbitrary and capricious, and (8) awarding penalties and attorney’s fees are reversed. All other | ^portions of the judgment are affirmed. Each party is to bear its own costs of this appeal.

REVERSED IN PART; AFFIRMED IN PART.


source: Caselaw Access Project

license: Public Domain

text:
    Melissa LUMINAIS v. O.R.S.T. INC. d/b/a Rivershack Tavern and Essex Insurance Company, Inc.
    No. 06-CA-749.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Raymond S. Steib, Jr., Gretna, LA, for Plaintiff/Appellant.
    Al M. Thompson, Jr., Al M. Thompson, Jr., L.L.C. New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

|2In this personal injury suit, plaintiff/appellant, Melissa Luminais, appeals a jury verdict dismissing her case against defendants, O.R.S.T. Inc. D/B/A Rivershack Tavern and Essex Insurance Company, Inc., Walter J. Teoulet, Jr., and others. Luminais sued the defendants for injuries she allegedly sustained in an accident on the stairs at the Rivershack Tavern in Jefferson, Louisiana, on June 7, 1999. After a three day trial in March of 2006, the jury returned a verdict for the defendants, finding that the steps upon which Lumi-nais fell were not unreasonably dangerous. The plaintiff moved for a New Trial and a Judgment Notwithstanding the Verdict, which were denied.

On appeal, Luminais asserts the following Assignments of Error:

1. The trial court committed reversible error when it released Walter J. Teoulet, Jr., a defendant, from his subpoena sua sponte, without a Motion to Quash Subpoena or hearing;

_Jj2. The trial court committed reversible error when it considered hearsay evidence in its inquiry about the unavailability of the defendant, Walter J. Teoulet, Jr., to testify. The trial court further erred in considering this evidence when it was not revealed by defense counsel until the last day of trial, the day Teoulet was called to testify;

3. The trial court committed reversible error when it refused to admit affidavits executed by Teoulet in prior litigation concerning the same stairs at issue in this litigation, which affidavits were against his interest, on the basis that the affidavits constituted hearsay;

4. The trial court committed reversible error when it further refused to allow the plaintiff to introduce the affidavits by the unavailable witness as provided for under LSA-C.E. art. 804 (hearsay exceptions);

5. The trial court committed reversible error when it refused to allow introduction of other evidence of previous accidents on the same set of stairs, and committed further reversible error by commenting on the value of the evidence in front of the jury;

6. The jury interrogatories were confusing and misleading, because the form precluded the jury from considering the defendants’ negligence if the jury answered “no” to the first interrogatory, which addressed strict liability; and

7. The jury verdict was contrary to the law and evidence.

FACTS

Melissa Luminais filed suit against the defendants in November of 1999, alleging that on June 7, 1999, she fell on the steps while exiting the Rivershack Tavern, sustaining serious injuries to both feet, ankles, and her left wrist. She alleged that the stairs were defective and in unsafe condition, in that they did not | conform to the various applicable building codes, and that defendants knew of these defects, because of previous accidents, yet did not remedy the condition. Luminais ultimately underwent surgery on each ankle (in April of 2002 and December of 2005) to repair damage allegedly related to her trip and fall at the Rivershack.

In her first two Assignments of Error, plaintiff argues that it was reversible error for the trial court to release Walter J. Teoulet, Jr., a defendant and owner of the building in which the River-shack Tavern is operated, from his trial subpoena sua sponte. According to plaintiff, this ruling was made off the record and in chambers, on the last day of trial, and without any warning to plaintiff that this witness would be medically unavailable.

The record reveals that on the first day of trial, in a “housekeeping” exchange with the court and defense counsel, plaintiff counsel states that he will call “possibly” Teoulet as a witness the next day. No discussion was had, at that time, on the record regarding Teoulet’s medical status or availability to testify at trial. Trial lasted three days. A supplemental exhibit filed into the record by plaintiff shows that a trial subpoena directed to Teoulet was filed into the record on March 13, 2006, which was the first day of trial. The return shows that Teoulet was personally served with the subpoena on March 14, 2006, the second day of trial.

On the third day of trial, the following exchange took place on the record:

| .MR. STEIB:
Okay, Your Honor, the first witness we’re going to call is a Mr. Walter Teoulet, who is the owner of the bar. We received a letter this morning—
MR. THOMPSON:
Mr. Teoulet is not the owner of the bar, he—
MR. STEIB:
Okay, I’m sorry. The owner of the property, and we received notice this morning that he’s unable to attend. In lieu of his live testimony, we would then like to introduce his deposition.

The trial court went on to explain to the jury what a deposition was, and Mr. Teoul-et’s deposition was read into the record.

The appellate record shows no objection by plaintiffs counsel to the trial court’s releasing Mr. Teoulet from his trial subpoena, and indeed, shows acquiescence with the trial court’s alleged ruling in chambers, by introducing the deposition in lieu of his live testimony. As a result, the alleged error by the trial court concerning Mr. Teoulet’s appearance at trial was not preserved for appeal and is beyond this Court’s scope of review. Therefore, this Assignment of Error is without merit. Winston v. Flamingo Casino, 99-0209 (La.App. 4 Cir. 9/22/99), 746 So.2d 622.

Likewise, any unrecorded objection to the alleged hearsay evidence, the doctor’s letter that the trial court allegedly considered in support of his ruling releasing Teoulet from his subpoena, has not been preserved for appeal.

| filn the next two Assignments of Error, plaintiff argues that the trial court committed reversible error when it refused to admit affidavits executed by Teoulet in prior litigation concerning the same stairs at issue in this litigation, which affidavits were against his interest, on the basis that the affidavits constituted hearsay.

The record shows that plaintiff counsel proffered these affidavits immediately before offering Teoulet’s deposition in lieu of his live testimony. Plaintiff counsel noted on the record that the trial court had ruled that the original and supplemental affidavits would not be presented to the jury, but failed to state upon what basis the trial court excluded the affidavits from evidence. Plaintiff counsel argues, in brief, that the affidavits were excluded on the basis that they were hearsay. Plaintiff argues on appeal that the affidavits are not hearsay, since they fall under the hearsay objection found in LSA-C.E. art. 801(D)(2).

Art. 801(D)(2) states that a statement is not hearsay if the statement is offered against a party and is his own statement, in either his individual or a representative capacity (emphasis added). In brief, however, plaintiffs counsel makes clear that these affidavits would be offered to contradict- the testimony of a co-defendant, James Collings, the owner/operator of the Rivershack, the defense’s only other fact witness. Since these affidavits of Teoulet were not sought to be offered against Teoulet himself, they do not fall under the hearsay exception noted above, and the trial court’s ruling was correct.

Likewise, plaintiffs fourth Assignment of Error argues that the trial court erred in excluding the affidavits under LSA-C.E. art. 804, arguing that affidavits by a party presented against that party’s interest are admissible under this article as an admission against interest. Again, looking at the substance of the argument in [7brief in this Assignment of Error, it is clear that plaintiff sought these affidavits specifically to refute the testimony of James Collings. Again, since the affidavits were not sought to be used against the affiant himself, Teoulet, use of this exception to the hearsay rule is unavailing and the trial court’s ruling correct.

In plaintiffs fifth Assignment of Error, she argues that the trial court erred when it refused to allow the introduction of evidence of previous accidents on these same stairs. She further argues that the trial court improperly commented on the value of this evidence in front of the jury.

Evidence of prior accidents is admissible for the limited purpose of showing that a thing or place was dangerous and the defendant knew of the dangerous condition. However, the prior accidents must be closely related in circumstance to the injury or hazard at issue. To be relevant, the other accident should occur at substantially the same place, and under substantially the same conditions and must be caused by the same or similar defect, danger, act or omission. Brodtmann v. Duke, 96-0257 (La.App. 4 Cir. 2/11/98), 708 So.2d 447.

Prior to trial, Luminais filed a Motion for Summary Judgment on the limited issue of notice. Therein, she sought the trial court’s determination that O.R.S.T. already had notice that the stairs contained a defect that rendered them unreasonably dangerous, citing the Dufour lawsuit filed against O.R.S.T. in 1995, which was attached to the Motion for Summary Judgment. Introduction of the Dufour Petition for Damages as a piece of evidence was not specifically sought as such. Defendants opposed the Motion, arguing it was putting the cart before the horse to determine whether a defendant had notice of an allegedly unreasonably 1 sdangerous condition before the trier of fact had determined whether the condition was, in fact, unreasonably dangerous. The defendants also opposed the Motion on the grounds that the Dufour suit never went to judgment, and therefore it was never determined whether the stairs were defective. The defendants also argued that, based on the Dufour Petition, the accidents were too dissimilar or there was not enough information about the Dufour incident to determine whether the accidents were similar to each other. It was noted that Ms. Dufour alleged that her accident was caused by her heel catching the “improperly installed” metal stripping on the stairs, which differs from the allegations in this suit.

At the hearing on the Motion in December of 2005, the trial court deferred ruling on the Motion until trial. The Motion was denied by written judgment, however, on January 23, 2006.

At trial, counsel for plaintiff questioned James Collings about the allegations in the Dufour lawsuit, specifically referencing the Petition. Accordingly, the jury heard testimony that there was a previous accident on these stairs. However, plaintiff did not seek to introduce the Dufour Petition for Damages during Coll-ings’s testimony, or at any other time. Furthermore, plaintiff in brief does not cite to a specific page in the record wherein counsel sought to introduce the Petition. Accordingly, there is no adverse ruling on the introduction of the Petition, since it was never requested.

Plaintiff contends that the trial court improperly commented, in front of the jury, on the relevancy of the Dufour lawsuit. The judge made his comment following an objection by defense counsel, who was pointing out that in the Dufour lawsuit, Ms. Dufour specifically alleged that she tripped on the metal |3treads on the stairs, which fact differed from the allegations in Luminais’s lawsuit. To this extent, since it immediately followed a defense objection, it appears that the trial judge was sustaining defense counsel’s objection to further discussion of this aspect of the Dufour lawsuit since the facts of the two suits were not sufficiently similar, specifically the fact that Dufour allegedly tripped on the metal treads, whereas Lu-minais did not. On this point, we see no error. The remark, sustaining the defense objection on a specific point, was specific to the objection and not directed generally to the witness’s discussion of the Dufour lawsuit, which had already been discussed at length, without objection, during Coll-ings’s testimony.

In plaintiffs sixth Assignment of Error, she argues that the trial court erred when, after properly instructing the jury on negligence under LSA-C.C. arts. 2815 and 2316, it provided the jury with a special verdict form that precluded the jury from considering defendant’s negligence under C.C. art. 2315. Specifically, plaintiff argues that the jury interrogatories contained a “fundamental error” when they instructed the jury, if it answered “no” to the first interrogatory, to cease deliberations. Plaintiff argues that the first interrogatory addressed liability under C.C. art. 2317 only, or strict liability, and the instruction did not give the jury the opportunity to determine if Teoulet’s and O.R.S.T.’s negligent maintenance and construction of the stairs was a cause in fact of the plaintiffs injuries; in other words, plaintiff argues, the jury was precluded by the erroneous instruction from reaching a full and complete decision on all issues.

As the Fourth Circuit held in Quinn v. RISO Investments, Inc., 03-0903 (La.App. 4 Cir. 3/3/04), 869 So.2d 922, 927-28:

ImMs. Quinn alleges the defendants are liable under two theories of recovery: strict liability under La. Civil Code art. 2317 and negligence via La. Civil Code art. 2315.
There is a difference in proof between these two theories of liability, however, in that under La. Civil Code art. 2315, the plaintiff must show that the owner or custodian either knew or should have known of the risk, whereas under La. Civil Code art. 2317, the plaintiff is relieved of proving scienter on the part of the defendant, (cite omitted)
Under either theory of liability, the plaintiff has the burden of proving that:
(1) the property which caused the damage was in the custody of the defendant;
(2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises; and (3) the defect in the property was a cause-in-fact of the resulting injury, (cite omitted)

(emphasis added)

Accordingly, this interrogatory did not have the effect of precluding the jury from considering all of the plaintiffs claims. The first interrogatory accurately reflects the threshold inquiry a jury must make under both theories of liability, strict liability and negligence. In addition, plaintiff has failed to cite to the record page wherein counsel objected to the jury interrogatories on the record before they were given to the jury. Accordingly, we see no error.

Plaintiff argues last that the jury verdict was contrary to the law and evidence. Plaintiff argues that it was established that the stairs did not comply with applicable building codes, which are designed to promote safety, and therefore the stairs were unreasonably dangerous. They argue that the evidence established that James Collings admitted he had a duty to provide his patrons with safe premises, that he knew the stairs were unsafe, and that he violated this duty. Plaintiff argues that the only explanation Collings offered as to why the premises in question did not comply with code requirements was that it was entitled to historic non-conforming status.

|nThe jury heard that the Rivershack is an old building that was built before the promulgation of the variously discussed building codes. They also heard evidence that the building has not been formally named a historic structure, which would entitle it to certain non-conforming status, but the jury also heard from the expert witnesses that buildings that preexist the promulgation of building codes are “grandfathered” in, meaning that existing structures that are not in compliance with new codes are not required to perform work to comply with the new codes, unless there is a “major renovation.” James Collings testified that he repaired the three sets of narrow stairs that led outside each of the three doors, and additionally connected the 3 sets of stairs with a continuous riser that made it look like one long, wide set of stairs. Collings testified that before he performed work on the stairs, he called to see if he needed a building permit and was told that he did not, because it was repair work to an existing structure.

Plaintiffs disagreed with Collings’s characterization of the work he performed on the stairs, arguing that the scope of his work was really total replacement of the old stairs, and since the stairs were completely replaced, Collings was required to get a building permit and bring the new stairs in compliance with all building codes, which would have required construction of a landing, accessible handrails, and other changes, the lack of which were the proximate cause of Luminais’s accident.

Clearly, the jury was aware that the scope of Collings’s work on the stairs, whether a building permit was needed for that work, and whether the stairs violated the building codes or were “grandfathered,” were much contested issues. The jury apparently agreed with the defendants’ characterization of the work as a | ^repair job that did not require building permits and compliance with existing building codes, as evidenced by their negative answer on jury interrogatory # 1.

The jury also heard conflicting testimony about the amount of Luminais’s alcohol intake on the evening of the incident, which could have been a basis for their findings that the stairs’ condition was not a cause of the accident. We see no manifest error in the jury’s findings of fact.

AFFIRMED.

      . Other defendants are the Unopened Succession of Frederick B. Teoulet, the Unopened Estate of Walter J. Teoulet, Sr., and the Unopened Estate of Mildred M. Teoulet.

      . The surgery in 2005 also repaired damage related to a patella dislocation (the knee) caused when plaintiff fell due to instability in her ankle.

      . As such, as defense counsel notes in brief, the subpoena was filed late under the Rules for Louisiana District Courts rule 9.15(a), which requires the filing of the subpoena with the clerk of court ten days prior to the desired appearance date.

      . Counsel for plaintiff.

      . Counsel for defendant O.R.S.T.

      . Record, p. 578.

      . This prior litigation is the Dufour lawsuit, which is also the subject of further Assignments of Error.

      . Allegations contained in petitions filed in other cases are hearsay. In Guillory v. Employers Mut. Liability Ins. Co. of Wisconsin, 411 So.2d 504 (La.App. 1 Cir.1982), the trial judge properly refused to admit into evidence a number of petitions in cases filed in other jurisdictions, which contained allegations relative to the breaking of needles manufactured by the same defendant, "since the allegations contained in those petitions were hearsay and proof of nothing.”

      . Luminais alleges that she tripped on the stairs, which were alleged to be generally defective. The Petition does not mention the metal treads.

      . Testimony of Mr. Gallardo, expert witness for plaintiff.


author: GREG G. GUIDRY, Judge.

text:
    Florence Wilkins WHITE, Larry Joe White, Willie Mae White Holcomb, Willie Earl White, and Jackie Denise White v. SHELL EXPLORATION & PRODUCTION COMPANY, Shell Offshore Inc., Steve’s Welding Service and Steve Lasserre.
    No. 06-CA-677.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.
    Travis J. Turner, Walter C. Dumas, Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellant.
    David W. Leefe, Stephen M. Pesce, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.

      Nelson J. Cantrelle, Jr., Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ¡.Plaintiffs in this wrongful death and survival action are the children of the deceased, Joseph White (White). They appeal from a summary judgment rendered in favor of Defendants, Shell Exploration & Production Company, and Shell Offshore Inc., (collectively Shell), Steve’s Welding Service (Steve’s Welding), and its owner, Steve Lasserre (Lasserre). For the reasons which follow, we affirm in part and reverse in part and remand.

The record indicates that Lasserre was contacted by Shell in August 2003 to remove three identical tanks from the Shell Harvey Terminal. Steve’s Welding had an ongoing contract with Shell that had been entered into in December 1991. It was a blanket purchase order contract and called for Steve’s Welding to perform future work for Shell as an independent contractor. The 1991 contract required Steve’s Welding to “furnish all labor, supervision, machinery, equipment, |smaterials and supplies necessary” for the work, and to be “fully responsible for all work performed by subcontractors.” The tanks Shell wanted removed in 2003 had been previously cleaned.

In the past, when Lasserre did similar work for Shell, he either did it himself or subcontracted the work to Cornelius Gilmore (Gilmore). On this occasion, when Shell contacted Lasserre about the tank removal, he in turn contacted Gilmore. Gilmore accompanied Lasserre to the Shell Harvey Terminal to inspect the job to see if Gilmore wanted to do the job. Following the inspection, Lasserre presented Shell with a fixed price bid for the removal of the three tanks within a six day time period.

According to Lasserre’s deposition testimony, he would retain the payment from Shell. He did not pay Gilmore. Rather, Gilmore did the work for whatever he could collect on the sale of the removed tank pieces as scrap. Lasserre was present at the job daily and performed the function of fire watcher, that is, he observed the welding work insuring that nothing accidentally caught fire. Lasserre acknowledged that Shell left the method, details, and supervision of the work to him. Lasserre stated, in turn, that he left all such decisions to Gilmore.

Gilmore hired White to assist him. The work began on August 18th and, within one day, Gilmore and White cut and removed one of the three tanks without incident. On the second day, August 19th, Gilmore and White began working on the second tank. They chose a different method than that used the day before and cut off the top of the tank first. Following a break, White resumed cutting the tank alone. When White cut too much of the circumference, the concrete portion of the tank fell on top of him and killed him.

Plaintiffs, Florence Wilkins White, Larry Joe White, Willie Mae White Holcomb, Willie Earl White, and Jackie Denise White, White’s surviving children, |4filed this negligence action against Shell, Steve’s Welding, and Lasserre. Shell filed a motion for summary judgment arguing that it owed no duty to White because Lasserre was an independent contractor for whom they were not responsible. Las-serre also filed a motion for summary judgment arguing that Gilmore was an independent contractor for whom he was not responsible. Following a hearing, the trial court granted summary judgment in favor of all Defendants. It is from this judgment that Plaintiffs appeal.

In five assignments of error, Plaintiffs argue, essentially, that the trial court erred in finding that Lasserre was an independent contractor. They contend that Shell did exercise operational control over his actions. Plaintiffs also argue that the trial court erred in not finding that Shell was negligent in its hiring and monitoring Lasserre.

Shell argues, to the contrary, that the undisputed facts demonstrate that Shell owed no duty to White and, therefore, summary judgment was properly granted in its favor. Shell had a contract with Lasserre. The specific work, price, and time for performance were agreed upon. It was not an ultra hazardous activity and Shell retained no operational control over the work. Lasserre’s argument mirrors Shell’s, arguing that Gilmore was an independent contractor for whom he was not responsible.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327 (La. App 5th Cir. 04/25/00), 761 So.2d 84, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544; Moody v. United Nat. Ins. Co., 98-287 (La.App. 5th Cir.9/29/98), 743 So.2d 680. Thus, this court must consider whether there is any genuine issue of material fact, |fiand whether the mover is entitled to judgment as a matter of law. Smith, supra; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, supra. All doubts should be resolved in the non-moving party’s favor. Hines, supra; Mortgage Electronic Registration Systems, Inc. v. Richard, 04-686 (La. App 5th Cir. 11/30/04), 889 So.2d 1126.

The Louisiana Supreme Court has set out guidelines for determining whether a person is an independent contractor or an employee. As a general rule, neither the owner nor the general contractor is liable for the negligence of an independent contractor who performs work for the owner or general contractor. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). In Hickman, the Supreme Court found the following factors relevant in determining whether the relationship of principal and independent contractor exists: (1) the existence of a valid contract between the parties; (2) whether the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) whether the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) whether there is a specific |fiprice for the overall undertaking agreed upon; and (5) whether the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. Hickman, 262 So.2d at 390-91.

It is not the supervision or control which is actually exercised by the employer that is significant, but whether, from the nature of the relationship, the right to do so exists. Hickman, 262 So.2d at 391; Mack v. CDI Contractors, Inc., 99-1014, p. 7 (La.App. 5th Cir.2/29/00), 757 So.2d 93, 97.

This Court similarly found that in deciding whether a person performing work for another is an employee or an independent contractor, and, thus, whether the principal is liable for that person’s negligence, the court is to analyze the degree of independence or subserviency of the person in accordance with the following factors: “(1) the existence of a contract for the performance of a specific job, (2) payment of a fixed price for the work, (3) employment by the contractor of assistants who are under his control, and (4) the furnishing of tools and materials and the right to control the conduct of the work while in progress.” Villaronga v. Gelpi Partnership No. 3, 536 So.2d 1307 (La.App. 5th Cir.1988), writs denied, 540 So.2d 327 (La.1989).

Applying these precepts to the facts presented, we find that Shell amply supported its motion for summary judgment. Lasserre, d/b/a, Steve’s Welding, was an independent contractor for whom Shell was not hable. The record shows that these parties had an ongoing contract detailing the relationship as that of an independent contractor. In this instance, an agreement existed between Shell and Lasserre for a set price for the specific job to be performed in a specified time period. The job was of an independent nature for the removal of three tanks from the Shell Harvey Terminal, to be done according to Lasserre’s chosen method. He |7could have removed the tanks as is, or, as he decided to do, cut them up on premises and remove them in smaller pieces. Other than Shell personnel assisting in the positioning of the tanks with a Shell forklift, all laborers were to be employed by Lasserre and under his control. Shell retained no control over the daily operation of the job and, to the extent Shell employees assisted in the positioning of the tanks, it was at Lasserre’s direction. Lasserre had been hired previously to do similar work which he successfully completed. We find that Shell met its burden of proving that it owed no duty to White and did not act negligently. Therefore, we find that summary judgment was properly granted in favor of Shell.

We come to a contrary conclusion as to Lasserre. At this juncture of the case, we find that there are genuine issues of material fact that preclude summary judgment in his favor. The agreement between Lasserre and Gilmore is not altogether clear. According to Lasserre’s deposition, he was being paid for the job and Gilmore was not. Yet Gilmore went to Shell with Lasserre to review the job before Lasserre provided Shell with a bid price for its completion. While Lasserre stated that the manner of work was up to Gilmore and he did not have operational control over it, Lasserre was present at all times work was performed. He states that he was there solely as a fire watcher, but with his ongoing contract with Shell and his supervision of the job, we do not find it an undisputed fact that he had no operational control over the work. It is admitted that as fire watcher, if the torch work would have endangered the facility, he would have given advice to correct it. Moreover, since Lasserre contracted with Shell to perform the work of removing the three tanks, the work being performed was part of his business. In hiring someone to do the work he contracted to do, the record does not conclusively establish that Lasserre had no duty to White in hiring, supervising, or instructing |Rhim. Therefore, we find that summary judgment should not have been entered in Lasserre’s favor.

Accordingly, for the foregoing reasons, we affirm the part of the judgment granting summary judgment in favor of Shell Exploration & Production Company, and Shell Offshore Inc., and reverse the part of the judgment granting summary judgment in favor of Steve’s Welding Service and Steve Lasserre. We remand the case for further proceedings consistent with the views expressed herein.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    BREMERMANN MECHANICAL, INC. and Francis and Jacqueline Bremermann v. CITY OF KENNER,
    No. 06-CA-703.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.
    Kathleen C. Cresson, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Kurt C. Garcia, Attorney at Law, Ken-ner, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

| ¡/The City of Kenner appeals from a judgment of the trial court rendered on July 27, 2006 which granted plaintiffs motion to revoke the judgments of the Ken-ner Mayor’s Court. For the reasons stated more fully herein, we affirm the trial court’s judgment.

Facts and Procedural History

On March 9, 2006, Bremermann Mechanical, Inc. (hereinafter “BMI”) filed a Petition for Trial de novo and a Suspensive Appeal from the judgments of the Kenner Mayor’s Court rendered on February 8, 2006 and December 9, 2005. According to plaintiff, these judgments are null and void. Plaintiff also prays for a | .¡preliminary injunction preventing enforcement of the judgments as well as damages, attorney’s fees and costs.

On March 23, 2006, the parties entered into a Consent Judgment by which the City of Kenner agreed to refrain from issuing further citations against BMI and from making any attempts to enforce the judgments or to collect the occupational license tax against BMI pending final and complete judicial determination of this action. On the same date, the City of Ken-ner responded to plaintiffs petition with an Exception of No Right and/or Cause of Action, arguing that plaintiff had no right to seek a civil injunction where the jurisdiction of the Kenner Mayor’s Court only included misdemeanor criminal violations. On April 7, 2006, BMI filed a Motion to Void Judgment(s) of Kenner Mayor’s Court based on Kenner’s Exception of No Right of Action.

Both of these matters were heard in the trial court on July 27, 2006. On that date, the trial court rendered judgment denying the City of Kenner’s Exception of No Right and/or Cause of Action. The trial court further rendered judgment granting plaintiffs Motion to Revoke the Judgments of the Kenner Mayor’s Court and both of these judgments were voided. The City of Kenner now appeals from this judgment.

Discussion

Although the City of Kenner fails to specify an assignment of error in their brief filed in this court, the issue presented for review by appellant is as follows:

The issue is that Bremerman Mechanical, Inc. cannot arbitrarily choose its own domicile to avoid paying occupational taxes in contravention of City of Ken-ner Code of Ordinances, Section 10-53 et seq.

|4In support of this position, appellant relies on the Kenner Code of Ordinances, Sections 10-53 through 10-72 relating to the imposition of an occupational license tax. It is the City of Kenner’s position that BMI is a contractor operating and maintaining its business in the City of Kenner, and BMI is therefore liable for the payment of Kenner’s occupational license tax according to law. In contrast, BMI contends that it is a contractor with its corporate domicile in Atlanta, Louisiana and its principle place of business in Me-tairie, Louisiana. BMI contends that it pays its occupational license tax in Jefferson Parish, and that although it maintains a Post Office Box and a residential address in Kenner, Louisiana, this does not make the corporation liable for occupational taxes in Kenner.

The City of Kenner contends that sufficient proof of BMI’s principal place of business in Kenner was submitted to the Kenner Mayor’s Court at the trial of this matter. On motion of plaintiff, the records from these proceedings have been accepted as a supplement to the appellate record in this case.

The record in this case contains a copy of a citation issued on April 15, 2005 by the City of Kenner to BMI located at Route 1, Box 53A, Atlanta, Louisiana, for violation of Kenner city ordinance number 1421, section 10-53, relative to failure to hold an occupational license.

Sec. 10-53(a) provides:

In addition to all other license and excise taxes imposed by other laws, there is hereby levied an annual occupational license tax upon each person, association of persons, partnerships, firms and corporations pursuing any trade, profession, vocation, calling or business in the city, subject to license under Section 28, Article 6 of the Louisiana State Constitution and Louisiana Revised Statutes Chapter 3, Subtitle 11 of Title 47, R.S. 47:341 through 47:363, as amended, and R.S. 33:4862.14.

(Emphasis added.)

|BThis ordinance allows the City of Ken-ner to impose an occupational tax on those “corporations pursuing any trade, profession ... or business in the city, subject to license under ... La. R.S. 47:341 ...” La. R.S. 47:341, referred to in the ordinance, is the state statute which authorizes a municipality to impose an occupational license tax on any person conducting any business within the territorial jurisdiction of the municipality. BMI contends that it is in the business of contracting, which is defined in pertinent part in La. R.S. 47:342(3) as:

“Contractor” is synonymous with the term “Builder” and means a person, firm, partnership, corporation, association, or other organization, or a combination of them, which undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck, or demolish any building, highway, road, railroad, excavation, or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structure or works in connection therewith and includes subcontractors and specialty contractors.

La. R.S. 47:362 A contains a special provision applicable to contractors and provides:

§ 362. Special provisions
A. No municipality or parish shall levy a license tax upon any person engaged in the business of contractor, as defined in this Chapter, either upon a cost plus basis or upon other than a cost plus basis, except the governing authority of the municipality or parish in which is located the principal place of business of such contractor within the state as designated by the contractor. The maximum license tax paid by contractors licensed as required by this Subsection shall not exceed seven hundred fifty dollars.

Thus, Louisiana law permits a contractor doing business in the state to designate its principal place of business within the state and the statute only allows | fian occupational tax to be imposed on the contractor within this parish or municipality.

The detailed record from the Corporations Division of the Louisiana Secretary of State indicates that Bremerman Mechanical, Inc. is domiciled at Route 1, Box 53A, Atlanta, Louisiana 71404. Two registered agents are listed therein: Francis Bremerman is listed at the address in Atlanta, Louisiana and Jacqueline Piro Bremermann, whose address is listed as 1805 Taylor Street, Kenner, Louisiana 70062. This Kenner address is also given as the mailing address of the corporation.

The record in this case also contains a copy of the 2004, 2005 and 2006 Occupational License Tax certificates issued by the tax collector for Jefferson Parish to Bremermann Mechanical, Inc., PO Box 613, Kenner, Louisiana 70063, indicating a tax payment for each year the license was granted. The license certifications indicate that the location of BMI is 701 Pap-worth, Suite 103, Metairie, Louisiana and the classification of the business is listed as contractor. Further, the record contains a copy of the certificate issued by the State Licensing Board for Contractors in 2005 indicating that BMI is licensed by the state to practice building construction, mechanical work (statewide), and municipal and public works construction. The record also contains a copy of a lease of commercial property to Francis Bremer-mann of Bremermann Mechanical, Inc. The lease term is from January 1, 2003 through January 1, 2006 and applies to the general office space for estimating bids at Suite 103, 701 Papworth Avenue, Metairie, Louisiana.

The trial court, in its oral reasons for judgment, found that magistrate in the Kenner Mayor’s Court erred in determining that BMI maintained its principal place of business in Kenner. The court found that under state law, the corporate |7directors are allowed to designate a principal place of business in their corporate documentation. The trial court concluded that the City of Kenner had failed to prove that BMI maintained its principal place of business in Kenner so as to allow the imposition of occupational taxes in that municipality. Based on our review of the record, we agree with the trial court’s conclusion.

The corporate domicile of BMI found in the public records for the State of Louisiana is stated to be Atlanta, Louisiana. BMI submitted evidence that it maintained its office in Metairie, Louisiana and paid an occupational tax based on this office address in Jefferson Parish. Although the corporation maintains a mailing address in Kenner and one of its registered agents and directors resides in Kenner, this is not sufficient evidence to deem Kenner the principal place of business for the corporation. In fact, the record before us is devoid of evidence indicating that BMI’s principal place of business is in Kenner. Rather, the record supports BMI’s designation of their principal place of business as Metairie, Louisiana in Jefferson Parish.

Under the circumstances presented here, the City of Kenner has no authority under state law to impose an occupational license tax on this corporation. Insofar as the judgments of the Kenner Mayor’s Court held that Bremermann Mechanical, Inc. is subject to occupational license tax in the City of Kenner, those judgments are erroneous. We conclude that the judgment of the trial court was correct in finding the judgments of the Kenner May- or’s Court to be void. Accordingly, the judgment of the trial court rendered on July 27, 2006 is hereby affirmed. The City of Kenner is liable for all costs of this appeal.

AFFIRMED.

      . The December judgment found defendant Francis Bremerman, owner of Bremerman Mechanical, Inc., guilty of failing to acquire an occupational license. This judgment imposed a fine and a suspended jail sentence and probation on Mr. Bremerman. The February judgment set aside the personal judgment as to Francis Bremerman and rendered judgment against Bremerman Mechanical, Inc., requiring defendant to acquire an occupational license from the City of Kenner and to pay all past due taxes.

      . The trial court did not reach the issue of plaintiff's entitlement to damages, attorney's fees, and costs and those issues are therefore not before us in this appeal.

      . This definition in the state statute is identical to the definition of contractor contained in the Kenner City Ordinance, Sec. 10-54.


text:
    STATE of Louisiana v. Salvador MOURRA.
    No. 06-KA-695.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, William C. Credo, III, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Provino Mosca, Attorney at Law, Hara-han, LA, for defendani/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   THOMAS F. DALEY, Judge.

LThe defendant, Salvador Mourra, has appealed the trial court’s denial of his Application for PosNConviction Relief. For the reasons that follow, we dismiss this appeal.

The procedural history is as follows: On March 4, 2005, the defendant pled guilty to aggravated flight from an officer, a violation LSA-R.S. 14:108.1. The trial court sentenced the defendant to two years at hard labor with credit for time served, then suspended the sentence and placed the defendant on two years active probation. On June 2, 2005, the State filed a Motion and Order for Hearing to Revoke Probation alleging that the defendant had tested positive for Cocaine and had been in possession of firearms and body armor, violations of LSA-R.S. 14:95.1 and 14:95.3. On August 16, 2005, the defendant filed a motion requesting to withdraw his guilty plea of March 4, 2005, which the trial court subsequently denied, on January 13, 2006. In that motion, he alleged that he did not believe that he was pleading to a crime of violence, because at the time he committed the offense it was not a crime of violence and the court did not designate it as a crime |3of violence pursuant to LSA-C.Cr.P. art. 890.1. Further, he alleged that his current prosecution for possession of a firearm by a felon, whose prior conviction was for a crime of violence, was an ex post facto violation. On the same day, August 16, 2005, the defendant also filed a Petition for Posi^Conviction Relief alleging that his March 4, 2005 guilty plea was involuntary, because he did not understand the nature of the charge and the consequences of his plea. Specifically, he alleged that he did not realize that when he pled guilty in 2005 to the offense of aggravated flight from an officer, which he committed in 1999, that he was effectively pleading guilty to a crime of violence only designated as such in 2003. It is unclear from the record what action was taken on this application. On January 13, 2006, the trial court signed an order granting the defendant thirty (30) days to take a writ to this Court, presumably from the denial of his Motion to Withdraw his Guilty Plea. However, there is no record of such a writ being filed in this Court.

On January 27, 2006, after the defendant stipulated to the possession of firearms and body armor, the trial court revoked his probation and imposed the sentence rendered on March 4, 2005 of two years at hard labor with credit for time served to run concurrently with the defendant’s sentence for the probation violations. Defendant appealed his conviction on the firearm charges to this Court arguing he should not have been charged with possession of a firearm, a violation of R.S. 14:95.1, because at the time he committed the underlying felony, aggravated flight from an officer, that crime was not classified as a crime of violence. This Court affirmed the conviction, holding that the applicable law to be considered was the law in effect at the time he committed the firearm violation, not the law in effect at the time he committed the underlying felony. State v. Mourra, 06-133, (La.App. 5 Cir. 8/29/06), 940 So.2d 29.

|4While the appeal was pending, on March 22, 2006, the defendant filed a second Application for PosNConviction Relief, which the trial court denied, on March 28, 2006. In his second Application for Post-Conviction Relief, the defendant alleged that his plea “was not voluntary and intelligently made and [was] made in violation of the ex post facto application of law.” In addition, the defendant claimed that the sentencing court had not designated the offense as a crime of violence pursuant to LSA-C.Cr.P. art. 890.1. The trial court denied the defendant’s Application for Post-Conviction Relief finding that the defendant did not assert an appropriate ground for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.3. On August 4, 2006, prior to this Court’s decision on his appeal and approximately five months after his Application for Post-Conviction Relief was denied, the defense counsel filed a Motion for an Ou1^of-Time Appeal alleging that the trial court erred in denying the defendant’s Application for Post-Conviction Relief. The trial court granted the defendant’s Motion for an OuWof-Time Appeal. Following the lodging of the appellate record, the State filed in this Court a Motion to Dismiss the Appeal, arguing an Application for Supervisory Writs is the sole method by which a defendant can seek review of the trial court’s denial of his Application for Post-Conviction Relief.

In his August 4, 2006 Motion for an Out-of-Time Appeal, the defendant seeks to appeal the trial court’s denial of his second Application for Post^Conviction Relief. This application raises the identical issue that was raised in this Court in defendant’s appeal, namely that his prosecution for possession of a firearm by a felon, whose prior conviction was for a crime of violence, was an ex post facto violation because at the time he pled guilty to aggravated flight from an officer it was not a crime of violence. This Court addressed that issue finding there was no ex post facto violation because the relevant time to be considered is the Rtime the firearm offense was committed. Thus, we see no error in the trial court’s denial of defendant’s Application for Post-Conviction Relief as the claim raised by defendant was fully litigated on appeal. LSA-C.Cr.P. art. 930.4.

Additionally, an appeal cannot be taken from a judgment dismissing an Application for Post Conviction Relief. LSA-C.Cr.P. art. 930.6(A).

For the foregoing reasons, the defendant’s appeal is dismissed.

APPEAL DISMISSED.


author: SUSAN M. CHEHARDY, Judge.

text:
    Robert BUTLER v. PARISH OF JEFFERSON.
    No. 06-CA-669.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Robert H. Urann, Robein, Urann & Lu-rye, P.L.C., Attorney at Law, Metairie, Louisiana, for PlaintiffiAppellee, Robert Butler.
    Wade A. Langlois, III, Courtney Fuller, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Attorneys at Law, Gretna, Louisiana, for DefendanVAppellant, Parish of Jefferson, East Bank Consolidated Fire District.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

l2In this workers’ compensation case the claimant, a firefighter, was awarded temporary total disability benefits for coronary artery disease diagnosed prior to his retirement. On appeal his employer, a parish fire department, asserts the Office of Workers’ Compensation judge erred in failing to find that the claim had prescribed and in finding the employer arbitrary and capricious for failure to pay weekly benefits. We affirm.

Robert Butler, a firefighter with the Parish of Jefferson, East Bank Consolidated Fire District (“the Parish”), experienced chest pains while on duty on November 1, 1996, and went to a hospital. After cardiac catheterization, he was diagnosed with coronary artery disease (“CAD”) involving the left anterior descending vessel. He underwent angioplasty and stenting of the vessel on the front of the heart.

Butler’s physician stated Butler had no evidence of myocardial injury at that point; he had insignificant coronary artery disease, and his pain was non-cardiac. Butler was off work several months, but he was paid his full salary in lieu of workers’ compensation, pursuant to La.R.S. 33:1995.

Butler returned to the job on May 13, 1997 without restrictions, and worked until July 5, 2004. On the latter date he felt chest pain and went to the hospital. RAn angiogram revealed blockage in his right coronary artery and his doctors determined he had significant three-vessel coronary artery disease. Butler underwent further surgery and placement of another stent, followed by cardiac rehabilitation therapy.

Subsequently Butler’s treating cardiologist and a physician hired by the Jefferson Parish Disability Pension Board determined that Butler was totally and permanently disabled from returning to work as a firefighter. He continued to receive his regular salary until August 31, 2004, as well as medical benefits, but no workers’ compensation indemnity. He retired from the fire department on August 31, 2004.

Butler filed a disputed claim for compensation with the Office of Workers’ Compensation (“OWC”) in September 2004. In answer to the claim, the Parish pleaded prescription.

Trial on the merits took place on July 7, 2005. At trial the parties stipulated that Butler’s average weekly wage was $1,418.00; that he last worked on the job on July 5, 2004; that his departure from the fire department was August 31, 2004; that he was out of work from November 1, 1996 through May 12, 1997, and during that time he was paid his full salary; and that the Parish had paid all medical benefits in connection with the injury.

On August 23, 2005 the OWC judge rendered judgment, finding that Butler sustained an occupational disease during the course and scope of his employment that became disabling in July 2004, and that the injuries were within the parameters of the Heart and Lung Act. The OWC judge found Butler entitled to payment of temporary total disability benefits from September 1, 2004, through the Lpresent and continuing, as well as to payment of all medical expenses, medication expenses, and transportation expenses for the disabling injury.

Further, the OWC judge found that the Parish had been arbitrary and capricious in refusing to pay workers’ compensation benefits and had failed to reasonably controvert the claim. The judge assessed a penalty in the amount of $2,000.00 for failure to pay benefits, attorney’s fees in the amount of $5,000.00, directed that the Parish be given a credit for all benefits already paid and for any earnings by Butler, and cast the Parish for costs.

Under La.R.S. 33:2581, there is a legal presumption that heart disease is an occupational disease for firefighters. It states:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

With respect to occupational disease, La. R.S. 23:1031.1 provides in pertinent part:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(1) The disease manifested itself.
(2) The employee is disabled from working as a result of the disease.
(3) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

15The Parish contends that, under the language of La.R.S. 23:1031.1(E), Butler’s claim prescribed because he first developed CAD in 1996, he was disabled for over six months at that time, and he knew his heart disease was occupationally-related. Alternatively, the Parish argues that the OWC judge was manifestly erroneous in finding the Parish was arbitrary and capricious and in awarding penalties and attorney’s fees, when the Parish brought a legitimate legal issue on prescription to the court.

La.R.S. 23:1209(A) sets out the applicable prescriptive period, as follows:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

The Parish argues that since the plaintiff was paid wages in lieu of compensation, under Section 1209(A) he had one year from the last payment of benefits to file a claim, or until May 1998.

In opposition to the appeal, Butler asserts the trial court correctly denied the exception of prescription. Butler cites LaCour v. Hilti Corporation, 98-2691 (La.5/18/99), 733 So.2d 1193, in which the claimant suffered from carpal tunnel | fisyndrome over several years (1991-1995), had periodic surgeries, was placed on short-term disability after each surgery, and always resumed his normal employment duties. Following yet another surgery in November 1995, however, his doctor advised the claimant he could no longer perform his work, yet his employer told him he would be terminated if he did not return to work by January 11,1996.

LaCour filed his workers’ compensation claim in September 1996. The employer argued that LaCour’s claim had prescribed because he had suffered with carpal tunnel syndrome as early as 1992 and was aware it was the result of using pneumatic tools in his workplace. However, the LaCour court concluded the claim had not prescribed, on the basis that “January 11, 1996 was the date when Mr. LaCour’s disability began because that was the date when he was forced to terminate his employment and all three factors set forth in Bynum were met.” 733 So.2d at 1196—1197.

The facts in this case parallel LaCour’s. Butler was diagnosed with CAD in the left anterior descending artery in November 1996 and was placed on leave until May 1997. He returned to duty without restrictions in May 1997, until on July 5, 2005 he developed a blockage in his right coronary artery with manifestation of significant three-vessel coronary disease. At this point he was determined to be totally and permanently disabled from returning to work as a firefighter. That date, chosen by the OWC judge, is consistent with La.R.S. 23:1031.1(E), which provides the prescriptive period for “all claims for disability arising from an occupational disease.” (Emphasis supplied).

“[A]n employee who is not disabled, although he knows he has contracted an occupational disease, is not required under a proper interpretation of La.R.S. |723:1031.1 to file his claim within the period set forth therein because, unless he is disabled, he has no cause of action for recovery under that statute.” Box v. City of Baton Rouge, 2000-0198 (La.App. 1 Cir. 4/2/03), 844 So.2d 405, 407.

The Workers’ Compensation Act is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries. Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859, p. 4 (La.04/10/95), 652 So.2d 1323, 1325. An employee who suffers a work-related injury that later develops into a disability has a viable cause of action. Id., 94-1859 at pp. 4-5, 652 So.2d at 1326. Prescription starts to run from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Id.

The “time the injury develops,” as interpreted to mean the date the disability develops, is usually determined as the time when it becomes clear that the worker can no longer perform his or her employment duties in a satisfactory manner. Thus, the “developing injury” rule has been applied not only when the injury does not manifest itself immediately, but also when the employee, after an accident in which injury is immediately apparent, continues to attempt employment duties until he or she is finally disabled from doing so. [Citations omitted.]

Sevin, 94-1859 at p. 5, 652 So.2d at 1326.

| RThus, an injured employee’s claim generally must be filed within one year of the accident unless benefits are paid, in which case suit must be filed within one year of the last benefits payment. However, when the injury does not develop into a disabling condition until some later date, the one-year-from-the-accident period is inapplicable, and the injured worker has one year from the date of development of the disability to file a claim, whether or not benefits were paid during a temporary recuperative period. This court has consistently interpreted the introductory term of the last sentence of Section 1209 A “when the injury does not ... develop immediately after the accident” to apply when the disability does not develop immediately after the accident, and the temporary payment of benefits during a recuperative period does not affect this interpretation.

Sevin, 94-1859 at p. 6, 652 So.2d at 1326.

Thus, we agree with the OWC judge that Butler’s claim had not prescribed. Although he received salary in lieu of benefits for a six-month period in 1996-1997, between 1997 and July 2004, Butler returned to work without restrictions. The critical date for the running of prescription is July 2004, when Butler was determined to be disabled from returning to duty as a firefighter. This action for benefits was brought timely within six months from that date as prescribed by La.R.S. 23:1031.1(E), and within one year as required by La.R.S. 23:1209(A).

With respect to the Parish’s alternative argument that the OWC judge erred in finding the Parish arbitrary and capricious and awarding penalties and attorney’s fees, we find no error in the determination.

For the foregoing reasons, the judgment is affirmed. The defendant-appellant is cast with costs of appeal.

AFFIRMED.

      . Pursuant to La.R.S. 23:1204, payment of medical benefits is not an admission of liability for indemnity benefits.

      . La.R.S. 33:2581, sometimes also called the Firemen’s Heart and Lung Act.

      . Bynum v. Capital City Press, Inc., 95-1395 (La.7/2/96), 676 So.2d 582 (1996).


author: ROTHSCHILD, Judge.

text:
    Karen Hamilton, Widow of Richard A. HAMILTON, Sr. v. Raymond LEFEVRE, Sr. and XYZ Insurance Company.
    No. 06-CA-729.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.
    Raymond J. Canzoneri, Jr., Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Salvadore J. Christina, Jr., Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   ROTHSCHILD, Judge.

|2On March 3, 2005, plaintiff, Karen Hamilton, filed this lawsuit against defendant, Raymond Lefevre, Sr., for the return of a Ford tractor or for the current market value of the tractor. In her petition, Mrs. Hamilton asserts that her late husband, Richard Hamilton, loaned his tractor to Mr. Lefevre to perform some maintenance work. She asserts that Mr. Lefevre agreed to return the tractor, but failed to do so. Mr. Hamilton died on April 24, 2004. Mrs. Hamilton contends that, since her husband’s death, she has made several attempts to retrieve the tractor from Mr. Lefevre, but he refuses to return it to her.

On July 21, 2005, Mr. Lefevre filed an answer, asserting that Mr. Hamilton donated the tractor to him in 1988. He further contends that he has had continuous possession of the tractor since 1988 and thus, he owns it via acquisitive prescription under LSA-C.C. art. 3491.

| ¡¡Trial of this matter was held on May 3, 2006. On May 23, 2006, the trial judge signed a judgment in favor of plaintiff and against defendant in the amount of $15,000, indicating that $10,000 of this award was for the value of the tractor and $5,000 was for attorney fees.

Mr. Lefevre filed a Motion for Devolu-tive Appeal on July 25, 2006. However, this Court is without jurisdiction to consider this appeal, because it is untimely.

LSA-C.C.P. art. 5002(A) provides:

An appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary.

The judgment at issue was signed by the trial judge in parish court on May 23, 2006. The record indicates that notice of judgment was issued by the clerk of court on May 30, 2006. In his Motion for Devolu-tive Appeal, Mr. Lefevre indicates that “[njotice of the signed judgment was received on June 28th 2006.” The Motion for Devolutive Appeal was not filed until July 25, 2006.

The record is clear that Mr. Lefevre did not appeal the parish court judgment within ten days of the date of the judgment or from service of the notice of judgment, as required by LSA-C.C.P. art. 5002. When an appellant fails to timely take and perfect an appeal, the appellate court lacks jurisdiction to hear the appeal and may dismiss it on its own motion. State Farm Mut. Auto. Ins. Co. ex rel. Robinson v. Jimenez, 98-1057 (La.App. 5 Cir. 1/26/99), 726 So.2d 465, 466. Accordingly, because it was not timely filed, Mr. Lefevre’s appeal is not properly before this Court, and it is hereby dismissed.

APPEAL DISMISSED.


author: EDWARD A. DUFRESNE, Jr., Chief Judge.

text:
    Austin and Jackie POTTINGER v. NEW ORLEANS HEATING & COOLING SPECIALISTS, INC., State Farm Mutual Insurance Company, The Trane Company, Zurich Insurance Company and Tracy Tardiff.
    No. 06-CA-701.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Albert J. Nicaud, Attorney at Law, Me-tairie, Louisiana, for Plaintiff/Appellant.
    Thomas G. Buck, John C. Henry, Brett W. Tweedel, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, Jr., Chief Judge.

12This is an appeal by Austin and Jackie Pottinger, plaintiffs-appellants, from a judgment sustaining an exception of prescription in favor of New Orleans Heating and Cooling Specialists, Inc, et al., defendants-appellees, in this suit involving an allegedly defective cooling system in a residence. For the following reasons we dismiss the appeal.

The allegations of the petition are that in September 2002, NOHCS installed three air conditioning units, including all ductwork and other equipment for the system. In May 2004 the Pottingers noted numerous alleged defects in the system. They notified NOHCS and the defendant sent workers out to deal with the problem in October 2004. Plaintiffs were still not satisfied with the results. Suit was filed on April 22, 2005, more than one year from the original installation, but within one year of the follow up work. The petition alleges that NOHCS is a contractor, that | sit undertook the installation work, and that the work was not properly done. In their prayer plaintiffs included a catch-all phrase asserting relief including “[a]ll other acts of negligence and fault which will be shown at the trial of the matter.”

NOHCS urged an exception of one year prescription as to the original installation, which was granted. That judgment states that because the petition asserts relief for “negligence and fault” the one year prescription for delictual actions applies. The judge therefore dismissed “all of the claims arising out of the original installation.” The judgment was not designated as a final judgment by the trial judge. Plaintiffs now appeal.

Article 1915 B of the Louisiana Code of Civil Procedure provides pertinently that when a judgment sustains an exception as to less than all claims between the parties, that judgment is not appealable unless the trial judge designates it as such. In the present case it is manifest that there are remaining claims.

Before turning to the particulars of the remaining claims, we must point out that La.Code Civ. Pro. Art. 862 provides that a judgment shall grant the relief to which a party is entitled, even where no prayer for such relief appears in the pleadings. This principal is more commonly referred to as “fact pleading,” and the old “theory of the case” pleading has been suppressed. See Art. 862, Official Revision Comments-1960.

In the present case plaintiffs allege that NOHCS is a contractor, that it undertook work on the premises, and that that work was improperly done. While there is indeed an element of negligence urged, these facts also unmistakably allege a contractual obligation subject to the ten year prescriptive period. La. Civ. Code Art. 3499.

The remaining alleged claims are thus as follows. There are factual allegations which support a claim arising out of a contractual obligation as to the | ¿original installation of September 2002, which claim is subject to the ten year prescription. Additionally, there is a similar contractual claim as to the follow up work of October 2004, as well as a delictual action as to this later work.

It is evident therefore that the judgment on the exception of prescription deals with less than all the issues between the parties. That being so, it is a partial judgment which is not appealable unless designated as such by the trial judge. Because there is no such designation in the record, the appeal must be dismissed.

APPEAL DISMISSED.