author: SUSAN M. CHEHARDY, Judge.

text:
    Theresa SAACKS v. Merlin J. SAACKS, Jr.
    No. 05-CA-365.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      R. Scott Buhrer, Attorney at Law, Me-tairie, Louisiana, for Appellee, Theresa Saacks.
    Merlin J. Saacks, Jr., In Proper Person, Metairie, Louisiana.
    Steven F. Griffith, Sr., Attorney at Law, Destrehan, Louisiana, for Appellant, Merlin J. Saacks, Jr.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and JAMES C. GULOTTA, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

|Jn this appeal, Merlin Saacks seeks review of the trial court judgment establishing child support and interim spousal support and partitioning the community of acquets and gains that formerly existed between himself and Theresa Saacks. For the following reasons, we affirm in part and reverse in part.

Facts

Merlin and Theresa Saacks were married on February 16, 1985. Two children were born during the marriage. On August 8, 2001, Theresa filed a Petition for Divorce. In conjunction with her petition for divorce, Theresa also filed a Rule for Child Support and Interim Periodic Spousal Support.

On August 17, 2001, Merlin answered and filed Rules for Incidental relief regarding preservation of community funds. Further, on September 5, 2001, Merlin filed a Motion for Rental Value seeking rental value for the marital home “should the use and occupancy be granted to Theresa Saacks.”

On October 25, 2001, after attempting informal mediation of the partition, Theresa filed a Motion to Appoint a Special Master. On October 27, 2001, Bruce Miller was appointed as Special Master. On October 29, 2001, Theresa also moved for appointment of a custody evaluator. On IsNovember 9, 2001, Merlin moved for rehearing of the appointment of a Special Master.

After a status conference on November 30, 2001, the trial judge issued an Interim Order reiterating the appointment of Bruce Miller as Special Master among other issues. The order was signed December 27, 2001.

On February 20, 2002, Merlin filed a Petition for Partition of Community Property. On March 26, 2002, Theresa’s Petition for Divorce was granted, retroactively terminating the community of acquets and gains as of the date the petition was filed, August 8, 2001. On October 20, 2003, Bruce Miller filed his report regarding the partition of the Saacks’ community.

On November 18, 2003, Theresa and Merlin went before the Domestic Hearing Officer for the Twenty-Fourth Judicial District Court for a hearing on Theresa’s Rule for Child Support and Interim Periodic Spousal Support. The hearing officer recommended that child support for the two children be set at $1130.00 per month and interim periodic spousal support be set at $760.00, retroactive to August 8, 2001. Further, Merlin was ordered to maintain health insurance on both children, to pay 78% of uncovered extraordinary medical expenses, and to pay 78% of mandatory private school expenses. The Domestic Commissioner entered an interim order adopting the hearing officer’s recommendations that same day, which was signed on December 2, 2003. Merlin filed an objection to the Domestic Commissioner’s Order, which was set for hearing in December of 2003 and later continued, at mover’s request, to March of 2004.

|40n December 10, 2003, Theresa filed her First Supplemental and Amended Sworn Detailed Descriptive List of Assets, Liabilities, and Reimbursements with regards to the community partition. On March 18, 2004, Merlin filed a Revised Descriptive List and Traversal of the Special Master’s Report. On March 23, 2004, Theresa filed a Second Supplemental and Amended Sworn Detailed Descriptive List and Traversal of the Special Master’s Report.

On March 24, 2004 and July 20, 2004, trial of the Petition for Partition, Traversal of the Special Master’s recommendations, and Merlin’s Objection to the Hearing Officer’s Recommendations and Interim Judgment was held. After hearing testimony from the Saacks as well as extensive testimony from Bruce Miller, who had been appointed Special Master, and Jay Golemi, who was retained as a forensic accountant to aid in evaluating Merlin’s personal and business records, the trial judge partitioned certain elements of the couples’ community.

Among many other details of the Saacks’ community of acquets and gains, the trial judge found that the business known as Superior Building Services, an electrical installation contracting company, constituted community property, which was valued at $46,985.00. Superior’s assets and liabilities were allocated to Merlin. Further, Merlin’s claim for damages based on Theresa’s use of community funds from the community business’ bank account was denied. Additionally, the trial judge denied Merlin’s request for an assessment against Theresa for the fair market rental value of the former marital home for the duration of Theresa’s use and occupancy of the home. Finally, the trial judge adopted the Domestic Commissioner’s Interim Judgment, which ordered Merlin to pay interim periodic spousal ^support of $760.00 for twelve months, with credit for payments that were made, and child support of $1,130.00 per month, 100% of the children’s medical insurance premiums, 78% of uncovered extraordinary medical bills, and 78% of mandatory private school expenses, retroactive to August 8, 2001. Judgments were rendered on July 20, 2004 and signed on July 27, 2004. Merlin Saacks now appeals a portion of these judgments.

La. R.S. 9:2801 provides the procedure for judicial partitions of community property and settlement of claims after dissolution of the marriage. La. R.S. 9:2801(A)(4), which establishes rules for the allocation of assets and liabilities reads, in part:

The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.
* * *

| nit is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Kambur v. Kambur, 94-775 (La.App. 5 Cir. 3/1/95), 652 So.2d 99. A court of appeal may not set aside a trial court’s finding of fact in absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989); Modere v. Madere, 93-610 (La.App. 5 Cir. 2/9/94), 632 So.2d 1180.

In light of these precepts, we will now address Merlin Saaeks assignments of error: first, “[t]he Lower Court erred in the community property settlement when it allocated the insolvent community business to the husband, Merlin Saaeks, after the wife had improperly withdrawn over $20,000.00 of working capital and business funds causing it’s[sic] demise;” second, “[although properly filed Civil Code Article 2354 and Civil Code Article 2369.3 claims were lodged against the wife, the lower Court further erred when it refused to allow a full hearing on said issue and summarily dismissed the claims;” third, “[t]he Lower Court erred when it assessed child support and spousal support based upon earnings levels that formerly existed in the insolvent business prior to the time the wife withdrew the working capital of the business, causing the demise of the business;” and fourth, “[wjhether the court committed legal error in assessing rental value against a party when none was requested and failing to assess rent against a party whom rent was properly requested.”

In his first and second assignments of error, Merlin argues in effect that the trial court erred in allocating the assets and, more importantly, the pliabilities of the community business solely to him. Merlin specifically argues that Theresa’s withdrawal of $20,000.00 from the business’ bank account caused the demise of the now-defunct business and, therefore, the business, or more specifically, its liabilities should have been allocated solely to Theresa “for her negligent conduct in her bad faith efforts to remove working capital from the community enterprise.” Further, Merlin contends that the trial judge “refused to consider any testimony or consider any evidence” to support Merlin’s claims that Theresa had defrauded the community and failed to preserve the community enterprise by withdrawing $20,000.00 from the business account.

Here, the trial judge heard testimony from the Special Master, Bruce Miller, and an expert forensic accountant, Jay Golemi, on the valuation of Superior Building Services, Inc. (“Superior”), the commercial electrical contracting company at issue in the community partition. Merlin Saacks, a licensed electrician, operated the business on a day-to-day basis during its existence. He possessed the knowledge as well as the equipment necessary to conduct the company’s business. Theresa Saacks, who is a licensed elementary education teacher, was not employed by the business or involved in operating the daily operations of the business.

Further, Bruce Miller and Jay Golemi testified that Superior was valued using the “book value,” or liquidation value, of the business on the date the community terminated, which included valuation of the cash on hand, accounts receivable, and tools minus the accounts payable and taxes due. Superior was not valued as an ongoing concern because, by Merlin Saacks’ admission at trial, the business was no longer operating at the time lsof trial. Merlin Saacks testified that he collected 100% of the Superior’s accounts receivable, totaling about $81,000, within five months of the community’s termination date. Additionally, Merlin Saacks retained possession of the funds that he collected.

Furthermore, Bruce Miller and Jay Go-lemi both testified that Theresa Saacks’ withdrawal of $20,000.00 from the business account did not cause the demise of the business. Both independent experts testified that the business accounts held sufficient cash to pay the business’ debts on the date of the termination and, further, the collection of 100% of the business’ receivables within five months infused the business with sufficient cash to continue to operate. Moreover, both experts attributed Superior’s demise to Merlin Saacks’ intentional non-payment of the business’ bills and refusal to solicite new work after August 2001.

Moreover, the trial judge also heard testimony from Merlin Saacks regarding the demise of Superior. Although he admitted that he collected 100% of Superior’s receivables by early 2002, he continued to state that his ex-wife’s removal of money from the business’ operating account rendered him unable to pay his creditors.

After reviewing the entire record, we cannot say the trial court abused its broad discretion in allocating Superior to Merlin Saacks. In cases such as this case, where there is a conflict in the testimony, reasonable evaluations of credibility and inferences of fact by the trier of fact will not disturbed on appeal. Based on the foregoing discussion, we find Merlin Saacks’ first assignment of error to be without merit.

|9In his second assignment of error, Merlin Saacks alleges that the trial court erred in denying his claim for damages based on Theresa Saacks’ fraudulent retention of community funds. La. C.C. Art. 2354 reads, “A spouse is liable for any loss or damage caused by fraud or bad faith in the management of the community property.” Article 2369.3 of the Louisiana Civil Code provides in pertinent part:

A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default or neglect.

La. C.C. art. 2369.3, comment (a) notes that this article imposes a higher standard of care in managing and maintaining former community property than the standard imposed during the marriage. The reason for the higher standard of care is that, after termination of the community property regime, the presumption that a spouse will act in the best interest of the community no longer exists. Knighten v. Knighten, 00-1662 (La.App. 1 Cir. 09/28/01), 809 So.2d 324, writ denied, 01-2846 (La.01/04/02), 805 So.2d 207.

The spouse alleging improper management bears the burden of proving that the former spouse failed to manage and prudently preserve the former community property prior to partition. Anding v. Anding, 32,084 (La.App. 2 Cir. 8/18/99), 740 So.2d 253; Drobnak v. Drobnak, 97-0021 (La.App. 1 Cir. 2/20/98), 708 So.2d 1162. La.C.C. art. 2369.3, comment (c) provides that a spouse who asserts a claim under this article is required to prove that the other spouse failed to act prudently in a manner consistent with the mode of use of the property under his control immediately prior to termination of the regime, not simply that he had former community |1flproperty under his control. Bad faith is not required under La. C.C. art. 2369.3 because the spouse is “answerable for any damage caused by his fault, default or neglect.” Gibson v. Gibson, 96-1472 (La.App. 3 Cir. 4/02/97), 692 So.2d 708, 710.

Our review of the record reveals that the trial judge denied Merlin Saacks’ claim after a hearing including extensive testimony from independent experts regarding the community business. Importantly, the record reflects that Merlin Saacks did not seek to introduce additional evidence or present additional testimony to support his claims that Theresa had mismanaged community funds. Furthermore, Merlin Saacks did not contemporaneously object to the denial of his claims. This assignment is without merit.

In his third assignment of error, Merlin Saacks argues that the trial court erred when it assessed child support and spousal support based on his “earning levels that formerly existed in the insolvent business prior to the time the wife withdrew the working capital of the business....” Merlin Saacks alleges that the trial court erred in finding that he was voluntarily underemployed and imputing to him an income of $78,000.00 for 2001.

To reiterate the procedural history of the support claims, Theresa Saacks included a request for child support and interim spousal support in her Petition for divorce, which was filed on August 8, 2001. On November 18, 2003, the Domestic Hearing Officer for the Twenty-Fourth Judicial District Court recommended that child support for the two children be set at $1130.00 per month and interim periodic spousal support be set at $760.00, retroactive to August 8, 2001. Further, Merlin was ordered to maintain health insurance on both children, to pay 78% of uncovered extraordinary medical expenses, and to pay 78%) of mandatory private school expenses. InThe Domestic Commissioner entered an interim order adopting the hearing officer’s recommendations that same day, which was signed on December 2, 2003. Merlin filed an objection to the Domestic Commissioner’s Order, which was set for hearing in December of 2003 and later continued, at mover’s request, to March of 2004 then to July of 2004. At the close of the July 20, 2004 hearing on Merlin Saaeks’ Objection to the Domestic Commissioner’s Order, the trial judge adopted the Domestic Commissioner’s Interim Judgment, which ordered Merlin to pay interim periodic spousal support of $760.00 for twelve months, and child support of $1,130.00 per month, 100% of the children’s medical insurance premiums, 78% of uncovered extraordinary medical bills, and 78% of mandatory private school expenses, retroactive to August 8, 2001, with credit for payments that were made.

At the hearing on his Objection to the Domestic Commissioner’s Order, Merlin averred that his income had significantly decreased after August of 2001. Although he did not submit personal income tax returns, he submitted income tax returns from his new business that reflect its income was -$4,500.00 in 2002 and -$2,500.00 in 2003. Merlin also testified that he had a “black flag hanging over his hair” since he did not pay his bills after his ex-wife removed money from his now-defunct business’ operating accounts. He stated that this “black flag” prevented him from obtaining business contracts. Merlin Saaeks admitted that, since 2001, he had received at least $170,000.00 in loans from banks and his parents. He also admitted that he had not used any of this money to pay the debts of his now-defunct business. Merlin Saaeks also admitted that he did not pay interim spousal support or child support for the previous 2$ years because he was told “it would come out in the settlement.”

_J¿¡.Child, support

The Court’s Special Master, Bruce Miller, and Jay Golemi, the forensic accountant employed by Bruce Miller, however, both testified that Merlin Saaeks’ electrical contracting firm had enjoyed over four years of progressively increasing revenues that reached approximately $250,000.00 in 2000. Jay Golemi testified that he had compiled an “Adjusted Income Statement” for Merlin Saaeks for 2001, which reflected income of $78,234.75. Further, Mr. Gole-mi opined that Merlin was capable of continuing to earn at least $78,000.00 per year. Bruce Miller reiterated that he believed that a person of Merlin Saaeks’ training, experience, and reputation was capable of earning around $80,000.00 per year.

In ruling on Merlin’s objection, the trial court found that Merlin was voluntarily underemployed. The trial judge stated that he was inclined to find Bruce Miller and Jay Golemi’s testimony more credible than that from Merlin Saaeks. In fact, the trial judge found Mr. Saaeks’ testimony both “extraordinary” and “for the most part unbelievable.” We cannot say that the trial judge’s credibility determination was clearly wrong and, thus, it will not be disturbed.

Under La. R.S. 9:315(C)(6)(b), income includes potential income of a voluntarily unemployed or underemployed party. Thus, if a party is voluntarily unemployed or underemployed, child support must be based on a determination of his or hér income earning potential. La. R.S. 9:315.11. Whether a party is voluntarily under/unemployed with respect to calculating child support is a question of good faith of the party to be cast with paying the child support obligation. Stephenson v. Stephenson, 37,323 (La.App. 2 Cir. 5/14/03), 847 So.2d 175; McDaniel v. McDaniel, 03-1763 (La.App. 3 Cir. 5/19/04), 878 So.2d 686.

113In virtually every case where a parent’s voluntary unemployment or underemployment was found to be in good faith, courts have recognized extenuating circumstances beyond that parent’s control which influenced or necessitated the voluntary change in employment. A party is not deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. Voluntary underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Schuler v. Schuler, 04-91 (La.App. 5 Cir. 5/26/04), 876 So.2d 196.

Our review of the record reveals that Merlin was complacent with his job situation, and appears to have made minimal efforts to obtain new business for his electrical contracting firm. Further, we are presented no reason to disturb the assessment of Merlin’s credibility, and find the trial court did not err in concluding that Merlin was voluntarily underemployed.

Under La. R.S. 9:315.11, if a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. When determining whether a spouse is underemployed for purpose of calculating a child support obligation, the court shall consider that spouse’s earning capacity in light of all circumstances. Hansel v. Hansel, 00-1914 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, writ denied, 01-3365 (La.3/8/02), 811 So.2d 880.

In the present case, the wage earned prior to voluntary underemployment is the best estimate of earning potential. Here, Merlin | uearned $78,000.00 per year prior to his divorce. Using this wage, it is clear that Merlin’s earning potential is the same as it was when the Domestic Commissioner set the child support amount. We find no error in the trial court’s denial of Merlin’s Objection to the Domestic Commissioner’s Order with respect to the child support award.

Interim periodic spousal support

A spouse may be awarded an interim spousal support allowance based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. La. C.C. art. 113. Absent a pending demand for final spousal support, an award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce. La. C.C. art. 113. The spouse seeking interim spousal support bears the burden of proving his or her entitlement to such. Clark v. Clark, 34,-314 (La.App. 2 Cir. 11/1/00), 779 So.2d 822, 825, writ denied, 00-3196 (La.1/12/01), 781 So.2d 563.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Clark v. Clark, 779 So.2d at 826; Thomey v. Thomey, 33,000 (La.App. 2 Cir. 4/7/00), 756 So.2d 698, 702. The trial court heard testimony from his independent experts on the financial condition and needs of the parties. After reviewing the entire record in this matter, we are unable to find that the trial court erred or clearly abused its discretion. Accordingly, we find no error in the trial court’s award of interim periodic spousal support to Theresa Saacks.

In his final assignment of error, Merlin argues that the trial court erred in failing to award him a credit for the fair rental value of the community home during the time it was occupied by Theresa.

11sLa. R.S. 9:374(C) reads, in pertinent part, that:

A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of La. R.S. 9:374(A) or (B) shall not be liable to the other spouse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court.

Jurisprudence has interpreted this section to require that such an agreement or court order be made at the time use and occupancy is awarded; rental payments may not be retroactively assessed. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280. In Richard v. Richard, 00-08 (La.App. 5 Cir. 5/30/00), 762 So.2d 271, this court discussed the policy considerations behind La. R.S. 9:374(C):

The request for rent in this matter was made by Austin pending settlement of the community, post divorce. Therefore, after dissolution of their community, and until it is partitioned, Austin and Peggy continued to hold the property as owners in indivisión, or, as co-owners. Anderson v. Anderson, 520 So.2d 1236, 1239 (La.App. 5 Cir.1988). In this situation, as has been made clear by the Supreme Court, La. R.S. 9:374 does not sidestep more general principles of co-ownership, but is applied in conjunction with the principles found in Civil Code articles 797 through 818 — articles governing “ownership in indivisión.” Article 802, in particular, provides that one co-owner cannot prevent another co-owner from making use of the property. Rights of each party, therefore, spring not from another co-owner’s mere use of the common property — here, the family home — but from the fact of ownership. And though one party’s exclusive use of the property does give rise to an action for damages, the action only arises if, and when, a demand for shared use is made and refused. McCarroll, 701 So.2d at 1289-90. Applying this principle to divorced spouses who yet hold property in common, if rent in this situation is a form of damages, the Supreme Court has held that “[f]or the assessment of rent under La.R.S. 9:374(0, there must be an agreement between the spouses or a court order for |1firent contemporaneous with the award of occupancy.” McCarroll, 701 So.2d at 1290. That is, “[rjental payments may not be assessed retroactively unless otherwise agreed to by the spouses or ordered by the court ... there must be an agreement between the spouses or a court order for rent contemporaneous with the award of occupancy.” Lupberger v. Lupberger, 99-0144 at p. 3 (La.App. 4 Cir. 6/16/99), 738 So.2d 138, 140.

In the present case, the record reflects that neither party was actually granted exclusive use and occupancy of the home, although it is undisputed that Theresa and their children have occupied the home. In fact, Theresa moved for exclusive use of the home in her original petition but her motion was never heard and appears to have been inadvertently dismissed. Merlin’s Motion for Rental Value was heard and denied on March 24, 2004, once the trial judge realized that there was no pending motion for exclusive use.

Further, there is no showing in the record that Merlin demanded and was refused occupancy so as to entitle him to rent. Finally, the record does not reflect an agreement between the parties to reserve the right to seek reimbursement. We find no abuse of discretion in the denial of his claim for reimbursement.

We note, however, that Theresa did not request reimbursement for loss of rental value when Merlin moved into the Saacks’ rental property. Accordingly, we reverse that portion of the judgment assessing rental value against Merlin Saacks, but, in all other respects, we affirm the trial court’s judgments of partition and support orders. Costs of this appeal are assessed against appellant, Merlin Saacks.

AFFIRMED IN PART; REVERSED IN PART.

      . On March 5, 2002, Theresa filed a sworn Detailed Descriptive List as ordered by the trial judge. The record, which was designated by appellant, Merlin Saacks, does not show that he filed a sworn Detailed Descriptive List within 45 days of his Petition for Partition as ordered by the trial judge.

      . See footnote 1.

      . At trial, Merlin Saacks admitted that he did not pursue new business for his company after his wife filed for divorce in August of 2001. He testified that he finished work on existing jobs that were bid but that he did not try to obtain new business or clients. He stated that he discontinued work under the name Superior Building Services by the end of 2001. He further admitted that he began a new electrical contracting company in 2002.


source: Caselaw Access Project

author: JAMES C. GULOTTA, Pro Tempore Judge.

license: Public Domain

text:
    Eva Hartman, Wife of/and Rayford HARTMAN v. CARCO, INC., American Claims Service, Parish of Jefferson, City of Westwego, and XYZ Insurance Company.
    No. 06-CA-203.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      R. Glenn Cater, Cater & Willis, New Orleans, Louisiana, Alfred Barrera, Avon-dale, Louisiana, for PlaintiffiAppellant.
    Kevin L. Cole, James A. Prather, Cynthia L. Thomas, Galloway, Johnson, Tompkins, Burr & Smith, Mandeville, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JAMES C. GULOTTA, Judge, Pro Tempore.
   JAMES C. GULOTTA, Pro Tempore Judge.

^Plaintiffs appeal from the summary judgment granted in favor of the Defendant, Careo, Inc., dismissing all Plaintiffs’ claims against Careo. We affirm.

In the memorandum in support of the motion for summary judgment, Careo explained that the City of Westwego awarded a contract to Careo to have the concrete apron surrounding the Avenue H fire station repaired. This required the existing concrete to be broken up and hauled away and new concrete re-poured. Careo in turn subcontracted with Jerry Bernard to perform the labor involved in breaking and removing the prior concrete and re-pouring the new concrete. Bernard provided a price per square foot for the job which Careo accepted after allowing for profit and materials.

This suit was filed by Rayford Hartman and his wife, Eva, against the City of Westwego, the Parish of Jefferson, Careo, and its insurers, American Claims IsService, and Lloyds of London. In this suit Plaintiff alleges that he slipped and fell while walking past the construction site on debris from the site where the street met the walkway/driveway. Hartman alleged that the construction site was improperly designed, maintained, constructed, operated, and/or marked. He contends that as a result of the negligence of the Defendants he sustained severe, painful and disabling injuries. Hartman’s wife Eva, it was alleged, suffered loss of consortium.

Careo, maintains Hartman slipped on mud on Avenue H during a rain shower. He slipped outside of but within one meter of the caution tape surrounding the project. Careo filed a motion for summary judgment arguing that it could not be liable for any negligence involving the concrete work at the site because it subcontracted the work out to Jerry Bernard, who was an independent contractor with control over the project. Careo alleged that it acted purely as a general contractor and had no supervisory control over Bernard or his employees. Bernard was not named as a defendant in this suit.

The Plaintiffs opposed the motion arguing that there were genuine issues of material fact, regarding whether Bernard was an independent contractor on the construction site, that precluded summary judgment. They argued that although Careo highlights Bernard’s control over the project, there are other important unresolved facts that bear on the question of whether Bernard was an independent contractor such that Careo is absolved of liability.

Following a hearing, the trial court, on June 15, 2005, rendered summary judgment in favor of Careo, dismissing all claims against it. The trial court also denied Plaintiffs’ motion for new trial. It is from these judgments that the Plaintiffs appeal.

|4On appeal the Plaintiffs argue, as they did in the trial court, that genuine issues of material fact exist regarding whether Car-eo was liable for the actions of Bernard, thus the trial court erred in granting summary judgment in its favor and denying the Plaintiffs’ motion for new trial.

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, and 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. All doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, 765; Mortgage Electronic Registration Systems, Inc. v. Richard, 04-686 (La.App. 5th Cir.11/30/04), 889 So.2d 1126. The credibility of a witness is a question of fact. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228; Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). A trial judge cannot make credibility determinations on a motion for summary judgment. Hutchinson, supra. Further, 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, supra. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach | Ronly one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, supra.

Careo argued, in support of its motion for summary judgment, that Bernard was an independent contractor on the construction project, evidenced by the fact he used his own employees and was paid by square foot for the project. Careo contends Bernard had complete control over the construction, thus, it cannot be held liable for the accident that occurred at the construction site because of the condition of the site.

The Plaintiffs opposed the summary judgment arguing that Careo ignored several factors pertinent to a decision in this case that present material issues of fact precluding summary judgment. More particularly, the Plaintiffs point out that Careo, through Rene Rodrigue, the owner, provided all the specifications for the construction project and bought or provided all materials used in the construction. Further, it is pointed out that the breaking of the concrete was not performed exclusively by Bernard but was done with the assistance of A & A Enterprises, a company selected by Careo, without an option on the selection by Bernard. Finally, the Plaintiffs argue that Careo retained control over the project evidenced by Ro-drigue’s deposition testimony stating that when problems arose with the construction he, rather than Bernard, handled the matter and determined what should be done.

Both parties rely on the case Villaronga v. Gelpi Partnership No. 8, 536 So.2d 1307 (La.App. 5th Cir.1988), writs denied, 540 So.2d 327 (La.1989), for the legal standard to determine 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. Villaronga, supra. To determine whether a person | fiperforming work for another is an employee or an independent contractor, and thus whether the principal is liable for that person’s negligence, a court is to gage 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, supra.

The Louisiana Supreme Court has set out similar guidelines, if not more detailed, in Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). Therein, the Supreme Court found the following factors relevant in determining whether the relationship of principal and independent contractor exists: (1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) 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) there is a specific price for the overall undertaking agreed upon; and (5) 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.

17Applying these precepts to the facts presented, we find that Bernard was an independent contractor for whom Careo was not liable. The record shows that an agreement existed between Bernard and Careo for a set price for the job to be performed. The job was for a specific task, breaking and removing the existing concrete apron around the fire station and re-pouring the new concrete, to be done according to Bernard’s chosen methods. Rodrigue (Carco’s owner) stated that he used other concrete sub-contractors from time to time. Bernard stated in his deposition that the laborers who performed the job were all employed by him and within his control. Careo supplied the materials only in the sense that Bernard ordered from a vendor who did business with Car-eo and the vendor would fill the order called in by Bernard and bill Careo. But it was Bernard who controlled what materials were ordered, the work being performed and the personnel performing it. Moreover, it was Bernard who controlled the daily operations of the job, breaking up and removing the concrete from the site and re-pouring it. Rodrigue stated that he only went out to the site on two occasions and one of those was before the work started to view the site for the bid.

Despite Bernard’s control over the project, Plaintiffs contend that there were unresolved factual issues regarding whether Careo retained control over the project. In support of their position they point to the fact that when Westwego wanted a cleaner edge on the concrete they called Rodrigue about it. Rodrigue in turn call Bernard and advised him to get a saw cutting company, A & A Enterprises, to make a straight cut on the edge. Bernard did what he was told.

Careo argues, to the contrary, that this incident did not indicate his control over the project but only that Careo was the contractor for the project. When the owner had a problem they notified the contractor who notified the sub-contractor. J^This did not give Careo operational control over the method of the work performed. We agree.

Rodrigue stated in his deposition that he turned the project over to Bernard and did not control the project or give him day to day instructions. Bernard did not dispute that in his deposition. The fact that West-wego contacted Careo about wanting a straight cut does not evidence Carco’s control over the project. Accordingly, we find, as did the trial court, that there are no unresolved issues of material fact and that Careo is entitled to judgment as a matter of law on its motion for summary judgment dismissing Plaintiffs’ claims against it for liability for the acts of its independent contractor. Consequently, we also find no error in the trial court’s denial of Plaintiffs’ motion for new trial.

For the reasons stated above, we affirm the summary judgment granted in favor of Careo and against the Plaintiffs dismissing all claims against it with prejudice, and find no error in the trial court ruling denying Plaintiffs’ motion for new trial.

AFFIRMED.

      . We note that the motion for summary judgment was filed on behalf of Careo, Inc., American Claims Services, Inc., and Certain Underwrites at Lloyd’s London, but the judgment on the motion only references Careo.

      . All claims against the Parish of Jefferson were dismissed by summary judgment dated November 9, 2004 and that judgment is not part of this appeal.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Thong DOAN v. TECHNICAL ENGINEERING CONSULTANTS, INC.
    No. 06-CA-166.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.
    Charles M. Raymond, Attorney at Law, New Orleans, Louisiana, for PlaintifftAp-pellant.
    Daniel A. Ranson, Glenn D. Price, Jr., Attorney at Law, Gretna, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

12This is an appeal from a trial court ruling granting defendant’s exception of prescription. For the reasons assigned herein, we affirm the judgment.

On July 14, 2005, plaintiff, Thong Doan, filed a Petition for Unpaid Wages, Penalties and Attorney’s Fees against his former employer, Technical Engineering Consultants, Inc. (“TEC”). Plaintiff alleges in his petition that he was hired by TEC in August of 1999 at an annual salary of $75,000. In February of 2001, he was required by his employer to perform work overseas at a rate of $1000.00 per day. He alleged that he worked for ten days, and was therefore due $10,000; however, he was only paid $1,730.88. Plaintiff terminated his employment with TEC on March 6, 2003.

By this petition, plaintiff now seeks the remaining amount of $8,269.12 which he alleges is due and owing by TEC. Plaintiff also alleges he is entitled to |spenalty wages and attorney’s fees in accordance with the provision of La. R.S. 23:631, et seq.

In response to this petition, TEC filed a peremptory exception of prescription on the basis that plaintiffs claim for unpaid compensation had prescribed. Defendant relies upon La. C.C. art. 3494, which provides that an action for the recovery of compensation for services rendered, including the payment of salaries and wages, is subject to the liberative prescription of three years. Further, defendant cites La. C.C. art. 3495, which provides that this prescription commences to run from the date the payment is exigible, and that it accrues as to past due payments even if there is a continuation of labor.

Following a hearing, the trial court maintained defendant’s exception of prescription and dismissed plaintiffs petition with prejudice. This appeal followed.

There is no dispute in this case that plaintiffs claim against defendant is for unpaid compensation and is therefore governed by the prescriptive period of La. C.C. art. 3494. La. C.C. art. 3495 addresses the commencement and accrual of this three year prescriptive period. It provides that:

This prescription commences to run from the day payment is exigible. It accrues as to past due payments even if there is a continuation of labor, supplies or other services.

Black’s Law Dictionary defines an “exigible” debt as a liquidated and de-mandable debt; a mature claim. Comment (b) to article 3495 states:

On principle, liberative prescription commences to run from the day a cause of action arises and its judicial enforcement is possible. See 2 M. Planiol, Traite elementaire de droit civil 3 Pt. 2, at 358 (Louisiana State Law Institute trans.1959):
Liberative prescription begins to run as soon as the action accrues, or, as Pothier said “the day on which the | ¿creditor could institute his demand.” It cannot commence sooner, because the time given for prescription should be a time during which the action can be exercised, and one cannot reproach the creditor for not having acted at a time when he did not have the right to do so. Otherwise, it could happen that the right would be lost before it could be exercised, which would be as unjust as absurd (Cass. Civ., 11 Dec. 1918, D.1923.1.96, P. and S.1921.1.161).

The sole argument raised by plaintiff concerns the date on which his claim became exigible. He argues that his claim for unpaid wages became exigible at the time he left defendant’s employment in March of 2003 and that the trial court erred in determining his cause of action arose prior to this date. As his petition was filed within three years from the date employment was terminated, plaintiff argues that his claim was asserted within the three year prescriptive period relied upon by defendant.

In support of this position, plaintiff relies upon several cases involving claims for payment of accrued vacation and compensatory time which the courts held became exigible when the employee left the employment. However, in those cases, the employees could have used the vacation or compensatory time up until the termination of employment, and the claims for unpaid compensation therefore did not become exigible until that time. In the present case, appellant was aware of the amount of compensation allegedly owed by the employer immediately after the work was completed. The amount allegedly due was fixed and certain. Plaintiff could have instituted judicial demand against defendant at this time.

Plaintiff also contends that there is a policy reason for setting the commencement of the prescriptive period on the date of the termination of employment. He argues that it is difficult for an employee to sue his employer during the employment for fear of retaliation. However, La. C.C. art. 3495 specifically provides that prescription accrues as to past due payments even if there |¡¡is a continuation of labor. While we are not unsympathetic to plaintiffs concerns and understand the magnitude of any decision to sue an employer, we cannot attach legal significance to these subjective concerns. See, Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482 (La.4/12/05), 898 So.2d 1260, 1270.

Accordingly, for the reasons assigned herein, we find that plaintiffs claims against defendant have prescribed pursuant to the clear terms of La. C.C. art. 3494. The trial court’s judgment is affirmed.

AFFIRMED.


author: MARION F. EDWARDS, Judge.

text:
    Roland VARNER v. BLESSEY ENTERPRISES, INC./Blessey Marine Services, Inc.
    No. 06-CA-168.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 26, 2006.

      Joseph J. Weigand, Jr., Houma, Louisiana, for Plaintiff/Appellant.
    M. Nan Alessandra, Taryn S. Southon, Phelps Dunbar LLP, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   MARION F. EDWARDS, Judge.

| gPlaintiffrappellant, Roland Varner (“Varner”), appeals a summary judgment granted by the Twenty-Fourth Judicial District Court and that dismissed his cause of action for damages. We affirm.

On October 21, 2003, Varner filed a petition alleging that, on January 28, 2002, he was employed as a tankerman by defendant/appellee, Blessey Enterprises, Inc. (“Blessey”) (on the vessel LAURA ANN BLESSEY (“LAURA ANN”)). On May 28, 2002, Varner suffered a heart attack in an incident unrelated to his employment, and, as a result, an ICD unit (a pacemaker and defibrillator) was inserted into his chest. He was released by his physician on October 23, 2002 to return to work with weight restrictions. The weight restriction was lifted on November 1, 2002. Blessey advised Varner that he had to take another physical with its company physician, Dr. Timothy Lavin (“Dr. Lavin”), before returning to Lwork. Varner alleged that Dr. Lavin refused to allow him to return to work, that he is a “disabled person” as defined in LSA-R.S. 23:301 et seq. and that Blessey’s action constituted employment discrimination pursuant to LSA-R.S. 23:323. Varner prayed for compensatory damages, back pay, benefits, attorney’s fees, and court costs. Among other things, Blessey denied that Varner was a “qualified individual with a disability” within the meaning of the statute.

Varner filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”). While it does not appear that there was a full blown hearing by the commission, the EEOC closed the file on August 29, 2003, with the following finding:

Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.

Blessey filed a Motion for Summary Judgment. In Varner’s deposition submitted in connection with the motion, Varner stated that his job duties on the LAURA ANN included loading and unloading barges, discharging, chipping, and painting. The barges transport hazardous materials and hazardous gases. The material on the barge is explosive, and Varner has been trained as a firefighter. Ninety percent of the time, the tankerman is the first response to a fire. Varner stated that he discussed his job duties with Dr. Thanh Duong Wagner (“Dr. Wagner”), telling her there would be heavy lifting and climbing, and he explained the Department of Transportation regulations to her. He told her he would be around radar and needed the 50-pound restriction lifted in order to return to work. He also told her he would be around hazardous materials. Dr. Wagner told him that if he felt he could do his job, then he could go back to work.

14Varner stated that he was told by Chad Parks (“Parks”), personnel manager at Blessey, he would have to undergo a physical with the company physician before he could be rehired. According to Varner, when Dr. Lavin examined him, the physician “did not understand” when told about the ICD. He testified that, after the physical, he spoke with Parks, who told him that Dr. Lavin suggested he not be allowed back on the boat, and that Parks told him the doctor did not understand the ICD procedure. Parks also denied him the opportunity to return as a deckhand. No one at Blessey told him he was disabled, and Varner felt he was not allowed to return to work because Dr. Lavin did not understand the procedure performed on him. Varner stated that he has no physical limitations, is not disabled, that he passed a stress test, and that he had been employed since then as a tankerman with several companies. He was working at Republic Barge Transportation at the time of the deposition. Varner averred that he could still perform the duties of a tanker-man and agreed that being able to respond to emergencies is one of the central functions of the tankerman.

In his Response to Statement of Uncontested Material Facts filed in connection with the summary judgment, Varner again admitted that every member of the crew of the vessel LAURA ANN, including the tankerman, must be able to respond to emergency situations such as fires or explosions and that he did not provide his treating physician, Dr. Wagner, with a copy of his job description or a copy of the Department of Transportation regulations applicable to his position as tankerman. He contended that he did explain his job duties to Dr. Wagner. Varner also stated that he was issued a Coast Guard tanker-man’s license in 2004 after passing a stress and eye examination.

In the record is the medical report issued by Dr. Lavin of Concentra Medical Center on November 14, 2002. In the section of the report relative to certification, |Bthe box “Does not meet standards” was checked, with a comment “do not place in emergency response position or job that requires this as an essential function.” Although the physician checked the statement that Varner was “able to perform essential functions as listed,” the report concluded: “do not place in job where emergency response is an essential function. If this can be accommodated, patient will require an exercise stress test. Please call if any questions.”

In connection with the Motion for Summary Judgment, Blessey submitted the affidavit of Parks, Blessey’s personnel manager, who deposed that, in accordance with maritime law, Blessey requires all tanker-man in its employ to have the requisite certifications and licenses from the United States Department of Transportation and from the Coast Guard. Failure to hold the required certifications disqualifies an individual from employment at Blessey. Parks further stated that it is critical to all crew members, and an essential function of a tankerman, that every member of the crew be able to respond immediately to an emergency situation on a vessel and failure to do so could have dire consequences. Parks told Varner he could return to his job upon getting a complete medical release. However, Dr. Lavin concluded that Varner was not physically fit to perform emergency response functions and that conclusion was the sole reason Varner was not allowed to return to work.

Appellate courts should review the granting of a summary judgment de novo under the same criteria governing the trial court’s consideration of whether a summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and | fiwhether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the ease. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. A material fact is one that would matter on the trial of the merits.

In Louisiana, Louisiana Employment Discrimination Law is codified in LSA-R.S. 23:301, et seq. LSA-R.S. 23:323 states that no otherwise qualified disabled person shall, on the basis of a disability, be subjected to discrimination in employment. Employers, etc., are not permitted to engage in certain practices with regard to “otherwise qualified disabled person[s],” including failure or refusal to hire, promote, or reasonably accommodate an otherwise qualified disabled person “on the basis of a disability, when it is unrelated to the individual’s ability, with reasonable accommodation, to perform the duties of a particular job or position.” An “otherwise qualified disabled person” means a disabled person who, with reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires. Under LSA-R.S. 23:322, “disabled person” means any person who has a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such an impairment, or is regarded as having such an impairment.

The Louisiana Act is modeled after the Americans with Disabilities Act (“ADA”) of 1990, 42 U.S.C.A. § 12101, et seq.

Varner does not argue that he is disabled but, rather, that he was regarded as disabled by Blessey to the extent that he could not work as a seaman for any company on any vessel. Blessey argues that Varner is not qualified to work as a l7tankerman and that it did not regard Varner as being disabled within the meaning of the law.

The Federal Courts have determined “regarded as” claims to mean the following:

An individual is “regarded as” disabled where a covered entity mistakenly believes that: (1) the person has a physical impairment that substantially limits one or more major life activities; or (2) an actual, non-limiting impairment substantially limits one or more major life activities. In both instances, the covered entity must entertain some misperception regarding the individual-either that he has a substantially limiting impairment that: (1) he does not have; or (2) is not so limiting as believed. Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Varner urges that Blessey’s actions prevented him from earning his livelihood as a seaman in a class of jobs, averring that New Orleans is a port city and the oil and gas industry is a major employer of seaman. He contends that Blessey’s reasons for refusing to employ him substantially restricts his life activity of working. At issue is Varner’s contention that he was refused not only the job of tankerman, but also that of deckhand.

Dr. Lavin did not approve Var-ner for the requisite certification and, instead, instructed that he was not to be placed in any position requiring an emergency response. Blessey maintains that it is essential that all members of the crew boat be able to respond immediately to any emergency, and Varner does not dispute this statement.

When the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs. Reflecting this requirement, the EEOC uses a specialized definition |sof the term “substantially limits” when referring to the major life activity of working:
“significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” § 1630.2(j)(3)(i).
The EEOC further identifies several factors that courts should consider when determining whether an individual is substantially limited in the major life activity of working, including the geographical area to which the individual has reasonable access, and “the number and types of jobs utilizing similar training, knowledge, skills or abilities, within the geographical area, from which the individual is also disqualified.” §§ 1630.2(j)(3)(ii)(A), (B). To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.

The ADA allows employers to establish physical criteria. Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.

The evidence establishes that all members of the crew on a vessel such as the LAURA ANN carrying hazardous materials must be able to make emergency responses, and, at the time Varner was refused reemployment, he was not medically approved for such activity and, thus, not approved for certification. If the oil and gas industry in New Orleans is a major employer of seamen as averred by Varner, it is by no means the only one. Blessey was free to determine 19that Var-ner’s medical condition limited him to the extent that it made him unsuited for a position on its type of vessel.

Under these circumstances, we hold that Varner does not meet the criteria of either being disabled or that he was regarded as disabled within the meaning of the applicable statutes. Thus, we find no question of material fact and conclude that the summary judgment was properly granted.

AFFIRMED.

      . Felix v. Briggs of Oakwood, Inc., 99-721 (La.App. 5 Cir. 12/15/99), 750 So.2d 1091, 1093 (citing Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152).

      . Descant v. TPA, Inc., 05-144 (La.App. 5 Cir. 6/28/05), 907 So.2d 810, 812.

      . Id.

      . Id.

      . Mason v. United Air Lines, Inc., 274 F.3d 314, 317 (5th Cir.2001) (footnotes omitted); see also, Sutton v. United Air Lines Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).

      . Sutton v. United Air Lines, Inc., 527 U.S. 471, 491-92, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450 (1999).

      . Id.


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

text:
    OAKVILLE COMMUNITY ACTION GROUP v. PLAQUEMINES PARISH COUNCIL, Benny Rousselle, In His Official Capacity as Executive Board Member and Parish President, and Joseph Clark, Amos Cormier, Rick Fremin, John Friedman, and Jerry Hodnet, et al.
    No. 2005-CA-1501.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 27, 2006.

      Corinne Van Dalen, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiff/Appellant, Oakville Community Action Group.
    Kevin D. Conner, Edward Markle, Belle Chase, LA, for Defendant/Appellee, Plaquemines Parish Council.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.
   LEON A. CANNIZZARO, JR., Judge.

_JjThis case involves an appeal from a trial court judgment granting the exceptions of no cause of action and no right of action raised by the defendants, who are (1) the Plaquemines Parish Council, (2) Benny Rousselle, in his official capacity as executive board member and parish president, and (3) Joseph Clark, Amos Cormier, Rick Fremin, John Friedman, and Jerry Hodnet, in their official capacities as members of the Plaquemines Parish Council (all defendants being referred to collectively as the “Council”). The plaintiff, Oak-ville Community Action Group (‘Oakville’), is appealing the trial court judgment.

FACTS AND PROCEDURAL HISTORY

The Council conditionally approved an application by Industrial Pipe, Inc. (“Industrial Pipe”) for a coastal use permit to expand a landfill it owned in Plaquemines Parish, Louisiana. Oakville, a nonprofit organization whose mission was to protect the Oakville community in Plaquemines Parish with respect to environmental, health, and safety issues, filed suit against the Council requesting that the trial court review all records compiled by the Council in connection with 1 ¡.its consideration of the coastal use permit for the expansion of the Industrial Pipe landfill.

In its suit, Oakville alleged that the Council’s decision to conditionally approve an application for a coastal use permit for the expansion of Industrial Pipe’s landfill into coastal wetlands adjacent to the Oak-ville community would directly and irreparably harm the wetlands. Oakville also contended in its petition that, because a solid waste landfill is not a wetlands dependent land use, the Council had improperly granted the application for a coastal use permit for the proposed landfill expansion. Additionally, Oakville claimed that the Council had improperly issued a coastal use permit without complying with the applicable provisions of the Louisiana Administrative Code. Finally, Oakville asserted that the Council failed to comply with both statutory and constitutional mandates applicable to the approval of the application for a coastal use permit for the proposed landfill expansion.

In response to the petition filed by Oak-ville, the Council filed peremptory exceptions of no cause of action and no right of action. The Council contended that because Oakville had not first brought its claims before the Secretary of the Louisiana Department of Natural Resources (the “DNR”) for review or sought the Council’s reconsideration of the Industrial Pipe permit, Oakville did not have a right of action or cause of action. After a hearing on the exceptions filed by the Council, the trial court judge granted the exceptions and transferred the matter “to ]sthe Louisiana Department of Environmental Quality for a reconsideration and review....”

DISCUSSION

Standard of Review

Whether a plaintiff has a cause of action and whether a plaintiff has a right of action are questions of law. Therefore, this Court is required to conduct a de novo review in determining whether the trial court was legally correct in granting the exceptions raised by the Council. See, e.g., Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719 (La.3/17/06), 929 So.2d 1211, 1217; Cmty. Land Ass’n of Louisiana, Inc. v. Zeno, 05-1489, p. 1 (La.App. 4 Cir. 6/21/06), 936 So.2d 836.

Exception of No Cause of Action and Exception of No Right of Action

The exceptions of no cause of action and no right of action are both peremptory exceptions, the function of which is “to have the plaintiffs action ^declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. In the Badeaux case, the Louisiana Supreme Court discussed these two exceptions. The Supreme Court stated that “one of the primary differences between the exception of no right of action and no cause of action lies in the fact that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant.” 929 So.2d at 1216-17.

The Supreme Court further explained that the function of an exception of no right of action is to determine whether a plaintiff is included in the class of persons to whom the law has granted the cause of action that is asserted in the plaintiffs petition. Id. at 1217. The Supreme Court also discussed the function of an exception of no cause of action and stated that an exception of no cause of action “questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.” Id.

In considering the merits of an exception of no cause of action, the trial court is required to decide whether to grant or deny the exception on the basis of the face of the petition. Id. To resolve the issues raised by an exception of no cause of action, “each well-pleaded fact in the petition must be accepted as true.” Id. In the case of an exception of no right of action, however, evidence is admissible at a hearing on the exception to either support or rebut the exception. Eubanks v. Hoffman, 96-0629 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 600.

| ¡^Assignments of Error

Aitthority of the Department of Environmental Quality

In its first assignment of error, Oakville asserts that the trial court judge erred in transferring this case to the Louisiana Department of Environmental Quality (the “DEQ”). Oakville argues that the agency that oversees coastal use permits is the DNR, not the DEQ.

The State and Local Coastal Resources Management Act of 1978, La. R.S. 49:214.21 et. seq. (the “Act”), provides for the management of the state’s coastal waters and adjacent shorelands. Both the Council and Oakville agreed at the oral argument of this case that it is the DNR, not the DEQ, that has the authority under the Act to review the approval of an application for a coastal use permit. It is clear that this position is correct, because throughout the Act, all agency references are to the DNR, not the DEQ. Further, the Act defines the term “secretary” to mean “the secretary of the Department of Natural Resources or his designee.” La. R.S. 49:214.23(10). Additionally, La. R.S. 49:214.26(A)(1) states that “[a] coastal management program is hereby established within the Department of Natural Resources.” Finally, that statute provides that “[t]he secretary or his designee shall administer the coastal management program.”

This assignment of error clearly has merit. The references in the judgment of the trial court to the DEQ should have been to the DNR.

| Granting the Exceptions of No Cause and No Right of Action to Decline Jurisdiction

In its second assignment of error Oak-ville argues that the trial court improperly declined to exercise its jurisdiction. As a result, the trial court granted the Council’s exceptions of no cause of action and no right of action.

Oakville contends that the trial court erred in finding that Oakville was required to seek agency review of the approval of Industrial Pipe’s application for a coastal use permit prior to seeking judicial review. La. R.S. 49:214.35 establishes two methods by which a decision regarding a coastal permit may be reviewed. La. R.S. 49:214.35(B) provides in relevant part that “[a] decision or determination shall be subject to reconsideration by the secretary [the secretary of the DNR] if a petition for reconsideration is filed in writing with the secretary within ten days following public notice of a final coastal use permit or local program approval decision.... ” Additionally, La. R.S. 49:214:35(D) provides that “[a]ny person authorized ... to appeal a coastal use permit decision ... may seek judicial review of that decision whether or not a petition for reconsideration has been filed....”

Thus, La. R.S. 49:214.35(B) provides for agency reconsideration of the approval of a permit application, whereas La. R.S. 49:214.35(D) provides for judicial review. Although the trial judge concedes in his reasons for judgment that La. R.S. 49:214.35(B) and (D) confer apparent concurrent jurisdiction on both the DNR and the court, he cites the “Louisiana ... strong public policy of allowing state government agencies to judge matters which fall within their field of |7expertise when it is appropriate.” Thus, he held that Oak-ville’s claims should first be considered by the DNR, because the DNR has special expertise in the management of coastal zones.

In the instant case, Oakville asserted in its petition that the Council, acting as the permitting authority for the local coastal management program in Plaque-mines Parish, failed to comply with the Plaquemines Parish Coastal Zone Management Program by conditionally approving an application for a coastal use permit for a use that is not an appropriate use. Oak-ville further claimed in its petition that the Council failed to comply with the requirements set forth in La. Admin. C. 43:1.723, which establishes the rules and procedures to be used in connection with, among other things, the issuance of coastal use permits.

La. Admin. C. 43:1723(8) requires the Council to consider all information in connection with a coastal use permit application to insure that there is an appropriate balancing of social, environmental, and economic factors. Additionally, pursuant to La. Admin. C. 43:I.723(C)(8), the Council is required to prepare a statement explaining the basis of its decision on all permit applications. Oakville also contended in its petition that the Council violated its duty to act as a public trustee of the environment by failing to consider and address the potential | ^adverse effects the expansion of Industrial Pipe’s landfill would have on the environment.

Therefore, we find that Oakville has on the face of its petition stated a cause of action based on its allegations that the Council has failed to comply with applicable laws and regulations in granting Industrial Pipe’s application for a coastal use permit. Thus, the Council’s exception of no cause of action was improperly granted by the trial court.

With respect to the exception of no right of action, we find that Oakville was within the group of plaintiffs with the right to assert the cause of action stated by Oakville. In La. R.S. 49:214.30(D), the Act expressly provides that “any aggrieved person or any other person adversely affected by a coastal use permit decision” may appeal the decision. Oakville’s members lived within the Oakville community in Plaquemines Parish and claimed to be adversely affected by the Council’s permit decision. Therefore, we find that the exception of no right of action was improperly granted by the trial court.

The trial court judge stated in his reasons for judgment that Oakville improperly relied on La. R.S. 49:214.35(D) to seek judicial review, rather than administrative reconsideration, of the Council’s decision to conditionally grant Industrial Pipe’s application for a coastal use permit. The trial court judge stated in his reasons for judgment that “agencies promote uniformity and consistency in the regulation of business entrusted to them; offer expertise in cases raising issues not within the conventional experience of judges.... ” The trial court judge further said in his reasons for judgment that “[t]he Court believes that whenever possible it should tap into their vast experience, knowledge base, and uniformity of rule making and regulatory power.” Finally, based on the foregoing statements, the 19trial court concluded that “[a]s a result of the above logic, this court believes that it has the inherent option to invoke this doctrine whenever the circumstances are appropriate, as in this case.”

In the instant case, however, Oakville has based its cause of action on the failure of the Council to comply with the regulatory requirements set forth in La. Admin. C. 431.723(8) and other applicable laws and regulations in connection with the Council’s granting of Industrial Pipe’s application for a coastal use permit. Thus, the issues upon which Oakville’s cause of action in the instant case are based are legal issues, and legal issues are squarely within the conventional experience of the courts, not government agencies such as the DNR. For this reason, we conclude that the trial court erred in transferring this case to an agency for consideration. The trial court should consider the instant ease to determine whether the Council complied with all applicable laws and regulations, including La. Admin. C. 43:I.723(C)(8), in approving Industrial Pipe’s application for a coastal use permit.

CONCLUSION

The judgment of the trial court is reversed. The case is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

      . The trial court judge erroneously referred to the Louisiana Department of Environmental Quality as the agency to which a request for reconsideration should have been directed. At the oral argument of this case, both the Council and Oakville agreed that the DNR was the appropriate agency and that the reference to the Department of Environmental Quality was in error.

      . La. C.C.P. art 927 provides in relevant part:
      A. The objections which may be raised through the peremptory exception include but are not limited to the following:

      (4) No cause of action.
      (5) No right of action, or no interest in the plaintiff to institute the suit.

      . As discussed above, the trial court judge actually referred to the DEQ, but the reference should have been to the DNR.

      . As discussed above, the trial court judge actually referred to the DEQ, but the reference should have been to the DNR.

      . La. Admin. C. 43:1.723(8) provides in relevant part as follows:
      Permit decisions will be made only after a full and fair consideration of all information before the permitting body, and shall represent an appropriate balancing of social, environmental, and economic factors. The permitting body shall prepare a short and clear statement explaining the basis for its decision on all applications. This statement shall include the permitting body's conclusions on the conformity of the proposed use with the guidelines, the state program and approved local programs. The statement shall be dated, signed, and included in the record prior to final action on the application.


author: TERRI F. LOVE, Judge.

text:
    Dianne BURRELL v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.
    No. 2006-CA-0067.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 2006.

      Gary M. Pendergast, New Orleans, LA, for Plaintiff/Appellee.
    Brian A. Ferrara, Attorney IV, Gerard M. Victor, Special Counsel, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   TERRI F. LOVE, Judge.

hThe New Orleans Sewerage and Water Board (hereinafter “Sewerage and Water Board”) appeals the ruling of the City Civil Service Commission (hereinafter “Commission”) that reversed the Board’s demotion of the appellee, Ms. Dianne Burrell (hereinafter “Ms. Burrell”), from Engineering Inspector Supervisor to Engineering Technician, ordered the retroactive payment of the pay rate difference in the two positions from the date of her demotion forward, and ordered the reduction of accrued sick leave by thirty (30) days. We find that the Commission did not abuse its discretion when it granted Ms. Burrell’s appeal and reversed the discipline imposed.

FACTS AND PROCEDURE

The instant litigation arises from the reprimand of a Sewerage and Water Board employee, Ms. Dianne Burrell. The appellant, the Sewerage and Water Board, took disciplinary action against the appel-lee, Ms. Burrell, an Engineering Inspector Supervisor with permanent status. Ms. Burrell suffered from mental illness and extreme episodes of depression after the murder of her son on | ¡July 10, 2003. Due to her condition, Dr. Wanda Timpton, her treating physician, recommended by letter dated November 3, 2003, that Ms. Burrell be placed on sick leave for the time period of November 3, 2003 through February 2004. Dr. Timpton recommended by letter dated February 4, 2004, that the period of sick leave be lengthened from February 4, 2004 to April 5, 2004, and the period was extended.

During this period of leave, Ms. Burrell attempted to return to her outside employment as a tax preparer with H & R Block, where she worked for eleven (11) prior tax seasons. In February 2004, Ms. Burrell attended required training classes for H & R Block. Ms. Burrell began tax return preparation on Saturday, February 7, 2004. However, she was unable to complete the required tasks sufficiently due to her illness; she resigned the next day from H & R Block after working a total of 9.57 hours.

By disciplinary letter dated October 25, 2004, Ms. Burrell was suspended for thirty (30) work days and demoted to Engineering Technician. Ms. Burrell appealed to the Commission. The Commission reversed the Board’s demotion of Ms. Bur-rell from Engineering Inspector Supervisor to Engineering Technician. The Commission also ordered the retroactive payment for the rate difference in the two positions from the date of her demotion forward and the reduction of her accrued sick leave by thirty (30) days. This appeal followed.

STANDARD OF REVIEW

The Commission’s decision is subject to review on any question of law or fact upon appeal. La. Const. Art. X, § 12(B). A reviewing court should not | ¡¡reverse the Commission’s conclusion as to whether the disciplinary action is based on legal cause unless the conclusion is arbitrary, capricious, or an abuse of discretion. Walters v. Dept. of Police of City of New Orleans, 454 So.2d 106, 114 (La.1984). When reviewing findings of fact, however, the appellate court should not reverse or modify a finding unless it is clearly wrong or manifestly erroneous. Id.

SICK LEAVE ABUSE

The Louisiana Constitution provides that a permanent classified City Civil Service employee cannot be subjected to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8. Such disciplinary action may be appealed to the Commission and the appointing authority has the burden of proof on appeal as to the facts. Id.

On appeal, the Commission has a duty to decide if the appointing authority had good and lawful cause for taking disciplinary action, and, if so, whether the punishment is commensurate with the offense. Walters, 454 So.2d 106, 113. Legal cause exists if the facts found by the Commission disclose that the employee’s conduct impaired the efficient operation of the public service in which the employee was engaged. Id. Specifically, the appointing authority must prove by a preponderance of the evidence that: (1) the complained-of conduct actually occurred, and (2) the conduct complained of impaired the efficiency of the public service and that it bears a real and substantial relationship to the efficient operation of the public service. Beba v. Dept. of Fire, 05-1209, pp. 4-5 (La.App. 4 Cir. 5/31/06), 933 So.2d 871, 875-76, citing Newkirk v. Sewerage and Water Bd., 485 So.2d 626 (La.App. 4 Cir.1986); and Cittadino v. Dept. of Police, 558 So.2d 1311 (La.App. 4 Cir.1990).

In civil service disciplinary cases, appellate court review is multifaceted. Walters, 454 So.2d at 106. First, deference will be given to the factual conclusions of the Commission. Id. Hence, the findings of fact should not be reversed or modified unless clearly wrong or manifestly erroneous. Cittadino v. Dept. of Police, 558 So.2d at 1315. Second, in evaluating the exercise of discretion by the Commission as to whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this Court should not modify the order of the Commission unless it is arbitrary, capricious or characterized by an abuse of discretion. Walters, 454 So.2d at 114. “Arbitrary or capricious” can be defined as the lack of a rational basis for the action taken. Bannister v. Dept. of Streets, 95-0404, p. 7 (La.1/16/96), 666 So.2d 641, 647.

This Court must determine two factors: (1) whether the appointing authority had good or lawful cause for taking the disciplinary action, and (2) whether the punishment imposed is commensurate with the offense. Beba, 05-1209, p. 6, 933 So.2d at 875. The Sewerage and Water Board must meet a two-pronged burden in order to prove that it had good and lawful cause for the disciplinary action taken: (1) proof that the complained-of conduct occurred, and (2) proof that the conduct impaired the efficiency of the department. Id.

lsIn bringing this appeal, the Sewerage and Water Board first contends that the Commission erred in finding that the appellee's ability to work a second job while on sick leave with the Sewerage and Water Board was not sick leave abuse. The Commission concluded that the Sewerage and Water Board failed to meet its burden. This conclusion is supported by the record.

The Sewerage and Water Board did not prove that the Ms. Burrell committed sick leave abuse. The Rules of the Civil Service Commission for the City of New Orleans define “sick leave” as “absence from duty because of the employee’s (1) illness or injury or (2) quarantine by health authorities.” In Cittadino v. Dept. of Police, this Court reversed the dismissal of Mr. Cittadino, finding that it was “so grotesquely unreasonable as to constitute a capricious action.” 434 So.2d 164 (La.App. 4 Cir.1983). Mr. Cittadino was discharged from the New Orleans Police Department on grounds that he worked without permission as a security guard for the University of New Orleans while he was on sick leave and that he failed to conduct a proper search of a prisoner who was found to possess a knife. Id. Mr. Cittadino worked two jobs with the knowledge and permission of his superiors for the period of his employment. Id. No evidence of prior suspensions was presented. Id.

In the case at bar, the disciplinary action was taken based on an investigation and conclusions drawn by the Sewerage and Water Board. Like Cittadino, action Dwas taken against Ms. Burrell for working another job while on sick leave. Mr. Hadi Amini, one of the supervisors who recommended that the disciplinary action be taken against Ms. Burrell, concluded that Ms. Burrell committed “payroll fraud,” which was characterized by “working another job while on extended sick leave.” However, during the pre-disciplin-ary hearing, he did not have any report of how many hours she worked nor how much money she made at H & R Block; he only had the dates that she worked. Mr. Amini testified that he knew of no prohibition against employees taking second jobs and he did not know that Ms. Burrell was employed by H & R block during prior tax seasons during non-work hours; he was not aware of any prohibition of employees working two jobs. Mr. A.J. Fairleigh, Ms. Burrell’s former supervisor, also testified at the hearing; he stated that he knew at the time that he supervised Ms. Burrell that she had been dually employed with the Sewerage and Water Board and H & R Block for years prior to 2004. No evidence was presented of prior reprimands.

The Sewerage and Water Board avers that if an employee in Ms. Burrell’s position attempts to work, the attempt should be made on her job at the Board. Here, there was no evidence presented that would prove that Ms. Burrell could have returned to her normal work duties in her condition. Ms. Burrell suffered from mental illness and extreme episodes of depression for which her physician recommended medical leave. She performed minimal activities for H & R Block, working a total of 9.57 hours and resigning thereafter due to inability to perform her duties because of illness. In Imbornone v. Dept. of Police, City of New Orleans, this Court held that there was insufficient evidence to support demotion where a police officer was injured in the line of duty and attended law school while on “injured on duty” status. 461 So.2d 1095, 1097 (La.App. 4 Cir.1984), writ granted and amended in part on other grounds, 462 So.2d 1256 (La.1985). Not unlike the instant case, doctors certified that Mr. Imbornone was physically unable to return to police work. Id.

The Sewerage and Water Board did not carry its burden of proof that the conduct complained-of, sick leave abuse, occurred. Since the Board did not establish the first part of its two-pronged burden, it is not necessary for this Court to evaluate the second prong as to the conduct’s impairment of the efficiency of public service.

Even in the instance that occasional violations of several departmental rules are proven, these violations may not ipso facto justify dismissal. Hayes v. Dept. of Police, 518 So.2d 18 (La.App. 4 Cir.1987). As stated by this Court in Hayes v. Dept. of Police, “[possibility is not proof’ and, “it is not for the Commission to search its imagination for what is not found in the record, nor is it for this court to do so, and we are unwilling to assume.” Id.

In a second assignment of error, the Sewerage and Water Board contends that the Commission was arbitrary and capricious in interfering with the authority of the Sewerage and Water board in managing its department. It is well established that the Commission has the exclusive power and authority to hear and decide all removal and disciplinary cases. La. Const. Art. X, § 12(B). The ^Commission is empowered to generally supervise the civil service system and establish rules for the administration of the system. Bannister, 95-0404, p. 5, 666 So.2d at 645. The Commission concluded that based on all of the facts, the Sewerage and Water Board’s actions were arbitrary. We find that the evidence provides a rational basis for the Commission’s determination. The Commission has not been arbitrary, capricious, nor has it abused its discretion in holding that the Sewerage and Water Board failed to meet its burden.

As the Sewerage and Water Board failed to prove that the conduct complained-of occurred and that Ms. Burrell’s actions impaired the efficient operation of the Board, the Commission did not abuse its discretion in granting Ms. Burrell’s appeal and reversing the discipline imposed.

DECREE

Accordingly, we' affirm the decision of the Commission.

AFFIRMED.

      . In its brief, the Sewerage and Water Board (appellant) avers that the Commission erred in finding that Ms. Burrell did not commit "sick leave abuse.” However, after investigation, the appellant concluded that Ms. Burrell committed “payroll fraud,” not "sick leave abuse.” The disciplinary letter dated October 25, 2004, states that the action was taken because she was "working another job while on extended sick leave.” The Commission found that Ms. Burrell "did not engage in payroll fraud” and that her activities “did not evidence improper use of sick leave.”