text:
    Lucy PARR v. U.S. EXPRESS ENTERPRISES, INC.
    No. 06-CA-320.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      D. Steven Wanko, Jr., Attorney at Law, Covington, Louisiana, for Appellant, Lucy Parr.
    Kevin T. Phayer, Attorney at Law, Me-tairie, Louisiana, for Appellee, U.S. Express Enterprises, Inc.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

1 ^Claimant, Lucy Parr, appeals the dismissal of her claim for workers’ compensation benefits due to lack of subject matter jurisdiction. For the following reasons, we affirm.

Claimant was injured on August 12, 2005 while within the course and scope of her employment for U.S. Xpress Enterprises, Inc. (“USX”). Claimant alleges and USX has accepted that, while working as an “over-the road” truck driver for USX she was injured in a motor vehicle accident with another tractor-trader in Texas. USX, through its insurer, Liberty Mutual Insurance Company, began- paying workers’ compensation benefits to claimant pursuant to Tennessee’s workers’ compensation laws. On January 5, 2006, claimant filed a Disputed Claim for Compensation against USX, seeking choice of physician, disability status, penalties, attorney fees, costs and interest, as allowed by Louisiana workers’ compensation law.

|3USX filed declinatory exceptions of lack of subject matter jurisdiction and lack of personal jurisdiction. After a hearing, the trial court granted the exception of subject matter jurisdiction and dismissed the claim. Claimant appeals.

On appeal, claimant argues that the workers’ compensation hearing officer erred in granting USX’s exception of lack of subject matter jurisdiction. Specifically, claimant alleges that she is eligible for benefits under La. R.S. 23:1035.1 because her contract of hire with USX was made in Louisiana.

La. R.S. 23:1035.1 provides:

(1) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he ... would have been entitled to the benefits provided by this Chapter had such injury occurred within this state, such employee ... shall be entitled to the benefits provided by this. Chapter, provided that at the time of such injury
(a) his employment is principally localized in this state, or
(b) he is working under a contract of hire made in this state.

In determining whether a contract should be regarded as a Louisiana contract or that of another state in workers’ compensation cases, the parties’ intent should be paramount. Moore v. KLLM, Inc., 96-38 (La.App. 5 Cir. 4/30/96), 673 So.2d 1268, 1272. Some of the factors to be considered in determining the parties’ intent include the domicile of the parties, the nature of the work to be done, and the place where the employment was initiated. Id. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 380.

At the exception hearing, claimant testified that she had been an “over the road” truck driver for USX for ten years before her accident. While working for USX, claimant lived in Louisiana. During her tenure with USX, she was aware of |4a small USX terminal in Harahan, Louisiana for about six or eight months but she admitted that the terminal had been closed for many years. According to documents introduced by USX, only 6 of the 144 trips claimant made in the year preceding her accident began and ended in Louisiana. Clearly, while claimant is domiciled in Louisiana, claimant’s employment is not “principally localized” in Louisiana.

Claimant also testified that, in August of 1996, she went to the USX “drop yard” on Jefferson Highway in Harahan, Louisiana to apply for an “over the road” trucking job. She could not remember the name of the USX employee that gave her the application and she admitted that he merely accepted her application but did not tell her that she was hired. Claimant stated that a female employee of USX called her “four or five days later” to ask her to attend a truck drivers’ orientation in Oklahoma City, Oklahoma. Claimant admitted at the exception hearing that she knew before leaving Louisiana that she had to complete orientation, pass her physical, and pass a road test before she could be hired by USX as an “over the road” driver. She stated that she would not have traveled to Oklahoma City for an interview without a strong belief that she would be able to pass all of the required tests but she could not state that she had been hired before leaving Louisiana.

In examining the factors such as the domicile of the parties, the nature of the work to be done, and the place where the employment was initiated, we do not find that the evidence supports claimant’s contention that she was working under a contract for hire made in Louisiana. We, therefore, find no error in the trial court’s judgment granting defendants’ exception of lack of subject matter jurisdiction and that judgment is affirmed. Costs of this appeal are taxed against Lucy Parr.

AFFIRMED.

      . Throughout the record, defendant/appellee is referred to alternately as "U.S. Express International, Inc.” and "U.S. Xpress International, Inc.” In this opinion, we will refer to the defendant/appellee as "U.S. Xpress, International, Inc.,” which the party uses to refer to itself.

      . USX contends that it pays benefits pursuant to Tennessee law. Claimant contends she receives benefits pursuant to Oklahoma law. For our purposes, it is only important to note that claimant does not receive benefits pursuant to Louisiana law.


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Maria ALVAREZ v. Edward J. CLASEN and Virgie B. Clasen.
    No. 06-CA-304.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Sally Dunlap Fleming, Justin Hollister, Attorneys at Law, New Orleans, Louisiana, for Plaintifi/Appellant.
    Frederick A. Miller & Associates, C. Michael Parks, Metairie, Louisiana, for Defendants/Appellees.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

(gPIaintiff, Maria Alvarez, appeals a judgment granting defendants’ Exceptions of No Cause of Action and No Right of Action, which resulted in the dismissal of her suit. Plaintiff alleged that defendants, Edward and Virgie Ciasen, committed the tort of conversion when they trapped her pet cat, Lucy, on their premises and turned her over to the Jefferson Parish Animal Control, who euthanized her. Plaintiff also asserted a cause of action for infliction of emotional distress. We affirm the judgment of the trial court.

ANALYSIS

The Exception of No Cause of Action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the petition. Ackel v. Ackel, 97-70 (La.App. 5 Cir. 5/28/97), 696 So.2d 140 at 142. For the adjudication of the exception, the well-pleaded facts of the petition are accepted as true. No evidence may be introduced at any time to support or controvert the exception. Id.

laThe Exception of No Right of Action is designed to test whether the plaintiff has a real and actual interest in the action. LSA-C.C.P. art. 927(A)(5). The function of the Exception of No Right of Action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Eschete v. Hildebrand, 06-18 (La.App. 5 Cir. 4/25/06), 930 So.2d 196.

In F.G. Bruschweiler (Antiques) Ltd. v. GBA Great British Antiques, L.L.C., 03-792 (La.App. 5 Cir. 11/25/03), 860 So.2d 644, this court stated:

Conversion is an intentional tort and consists of an act in derogation of the plaintiffs possessory rights. Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756, 760 (La.1985); Aymond v. State, Dept. of Revenue and Taxation, 951663 (La.App. 1st Cir.4/4/96), 672 So.2d 273. The tort of conversion is committed when one wrongfully does any act of dominion over the property of another in denial of or inconsistent with the owner’s rights. Aymond, supra; Hampton v. Hibernia National Bank, 598 So.2d 502, 504 (La.App. 2nd Cir. 1992). Any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion. Aymond, supra. Whitley v. Manning, 623 So.2d 100, at 102, writ denied, 627 So.2d 656 (La.1993). Although the defendant may have rightfully come into possession of another’s goods, the subsequent refusal to surrender the goods to one who is entitled to them may constitute conversion. Louisiana State Bar Association v. Hinrichs, 486 So.2d 116, 121 (La.1986); Aymond, supra; W. Prosser & W. Keeton, Torts, § 15 at 98-99 (5th ed.1984).

In her Petition, Alvarez alleged that she was the owner of Lucy, the domestic tan and gray tabby cat, by virtue of adoption. She further alleged that shortly after October 26, 2004, Lucy did not return home as usual, whereupon Alvarez began posting numerous “Missing” signs around the neighborhood, and also began asking the neighbors if they had seen the cat. Alvarez alleged that she questioned the Cla-sens, who denied knowledge of the cat’s whereabouts, and denied that they had trapped Lucy. Alvarez’s Petition further alleges that upon a later inquiry to the Jefferson Parish Animal Control office, she received a report from JPAC on November 11, 2004, which stated that Lucy had been trapped by the Clasens at |4their residence on October 27, 2004 and turned over to the JPAC, after which she was euthanized on November 3, 2004.

Plaintiff cites Peloquin v. Calcasieu Parish Police Jury, 367 So.2d 1246 (La. App. 3 Cir.1979) in support of her position that she has both a right of action and a cause of action against the Clasens for conversion and for mental anguish. In that case, plaintiffs filed suit against their neighbors and the Police Jury, alleging that the neighbors trapped their pet cat and turned it over to the animal control office, a political division of the Police Jury, who euthanized it. The trial court granted defendants’ Exceptions of No Cause and No Right of Action. Reversing the trial court, the court of appeal held that plaintiffs’ allegations of their ownership of the cat and their subsequent dispossession of cat by defendants’ actions, which allegedly caused cat to be destroyed, were sufficient to state a cause of action for damages for conversion of their pet cat, for the value of cat, and for mental anguish, inconvenience, and humiliation suffered due to defendants’ alleged actions.

In the instant case, the trial court declined to rely on Peloquin, erroneously stating that the only defendant in that case was the Police Jury, the agency that was alleged to have actually destroyed the cat. A reading of the case, however, shows that the Peloquins sued both their neighbors, who allegedly trapped their cat, and the Police Jury, who allegedly destroyed the cat. Therefore, the case is not distinguishable for the reasons cited by the trial court.

We find, however, that the Pelo-quin case is distinguishable on other grounds. As stated above, conversion is committed when one ummgfully commits any act of dominion over the property of another in denial of or inconsistent with the owner’s rights. The court in Peloquin assumed that the act of dominion was unlawful. According to Jefferson Parish ordinances, the Clasens’ alleged act of trapping Lucy at their residence was not an “unlawful” act of dominion. Section 7-|5(⅛ of the Jefferson Parish Code of Ordinances, entitled “Impoundment of cats; rabbits, raccoons, etc.,” states:

The animal shelter department may impound any cat, rabbit, raccoon, opossum, hamster, guinea pig, gerbil, and any other animal of like nature, found to be at large. Any such animal impounded may be reclaimed by the owner upon payment of impoundment and daily board fees and compliance with other legal requirements for keeping of such animal. If no claim is made on any such animal after five (5) days of impoundment, exclusive of Sundays and legal holidays, the animal shelter may humanely dispose of same in its discretion.

Section 7-16 of the same ordinances states that “An animal shall be deemed to be at large if off the premises of its owner or keeper and not under the immediate control of a responsible person.” The Petition clearly alleges that plaintiff learned from a report furnished by the Jefferson Parish Animal Shelter that Lucy had been trapped on the Clasens’ premises, which clearly shows that the cat had been “at large.” As defendants stated in brief, the Jefferson Parish ordinances clearly allow the Parish Animal Shelter to impound the cat trapped in defendants’ yard. Defen-dánts did not impound the animal, but simply turned the trapped animal over to proper governmental authority. Accordingly, under the allegations in the Petition, the Clasens’ “act of dominion” over the cat was not “unlawful,” and, therefore, they did not commit the tort of conversion. The result reached by the trial court, the finding of no cause of action, is correct, and the judgment dismissing plaintiffs claims against defendants is affirmed.

In her oral reasons for ruling, the trial court doesn’t address the substance of plaintiffs second cause of action, intentional infliction of emotional distress, and even appears to suggest that this cause of action remained viable. The trial court’s written judgment clearly dismisses plaintiffs entire case, however. Appeals are taken from adverse judgments, not from opinions of the court; the trial court’s Reasons for Judgment, while defining the principles upon which the court is deciding a case, form no part of the official judgment signed and from which [ ^appeals are taken. LSA-C.C.P. arts.1917, 1918; Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22.

Plaintiffs Petition alleges that the defendants lied to her, denying, when asked, that they had seen the cat or had trapped the cat, which allegedly constituted intentional infliction of emotional distress. The legal requirements for a cause of action for intentional infliction of emotional distress are: 1) that the conduct of the defendant was extreme and outrageous; 2) that the emotional distress suffered by the plaintiff was severe; and 3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. White v. Monsanto, 585 So.2d 1205 (La.1991). We find that plaintiffs Petition fails to allege conduct of the defendants that meets these legal requirements.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Peter TURNER v. MARINE INLAND TRANSPORTATION CO. and Maryland Marine, Inc.
    No. 06-CA-342.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Timothy J. Young, Robert J. Young, Jr., The Young Firm, New Orleans, Louisiana, for Plaintiff/Appellant.
    Edward F. LeBreton, III, John L. Robert, III, Fowler, Rodriguez, Chalos, Flint, Gray, McCoy, O’Connor, Sullivan & Carroll, L.L.P., New Orleans, Louisiana, for Defendant/Appellee.
    Panél composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   EDWARDS, Judge.

| sPlaintiff/appellant, Peter Turner (“Turner”), appeals a judgment of the Twenty-Fourth Judicial District Court dismissing his action against defendant/appellee, Maryland Marine, Inc. (“Maryland Marine”), as abandoned. We affirm.

Turner filed suit on November 23, 1998 against his Jones Act employer, Marine Inland Transportation Company (“Marine Inland”), and third-party defendant, Maryland Marine. The suit was for damages received in a chemical exposure while Turner was employed as a seaman on a barge owned by Maryland Marine and operated by Marine Inland, two separate entities. Various pleadings were filed, including a third-party demand by Maryland Marine against St. Paul Fire & Marine Insurance Company (“St.Paul”), which insured Ma-riñe Inland. On December 3, 1999, Maryland Marine filed a pleading entitled Memorandum in Opposition to Cross-Motion of St. Paul.

|3On January 6, 2000, Marine Inland filed a Notice of Bankruptcy, and, on January 14, 2000, it filed a Notice of Automatic Stay and Notice of Case Under Chapter 11 of the United States Bankruptcy Code. On September 23, 2000, Maryland Marine filed an Ex Parte Motion to Dismiss for Abandonment, which motion was granted by the trial court on September 27, 2000. The next document relevant to this matter was filed by Turner on May 26, 2005. That pleading was a Motion to Vacate Order Granting Defendant’s Motion to Dismiss for Abandonment, alleging in part that, on September 24, 2000, Turner had requested the court set the dismissal for hearing and that he was not served with the judgment granting dismissal as required by LSA-C.C.P. art. 561. Proper service of the judgment is not an issue on appeal. The court granted Turner’s motion to set the dismissal for hearing. Following the hearing, the court took the case under advisement and, on July 14, 2005, vacated its order of September 27 and granted dismissal, finding that Turner’s claim had been abandoned as of December 3, 2000. Turner filed a Motion for New Trial and/or to Amend Judgment, alleging that the court made a typographical error in determining the matter had been abandoned by December 2, 2000 and that, presumably, the court intended to use the date of December 3, 2002. Turner also disputed the merits of the judgment. The court granted the motion and, on August 1, 2005, amended the judgment to reflect an abandonment date of December 3, 2002.

On appeal, Turner urges that dismissal was improper, arguing that the ex parte order was improperly granted. That order is not before us. Rather we are concerned only with the 2005 judgment. We agree with Turner and the trial court that the earliest date that the matter could be deemed abandoned was December 9, 2002, three years after Maryland Marine filed its Opposition to Cross Motion of St. Paul. Turner, however, alleges that, on September 24, 2002, it forwarded to the 1¿trial court a letter requesting a contradictory hearing on the Motion to Dismiss, and that such letter constitutes a “step in the prosecution” in the case.

Under LSA-C.C.P. art. 561, an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.

Article 561 requires three things: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court and, with the exception of formal discovery, on the record of the suit; and (3) that it be taken within three years of the last step taken by either party....
A party takes a “step” in the prosecution or defense of an action when he takes formal action before the court intended to hasten the matter to judgment, or when he takes a deposition with or without formal notice....

This Court has found that “it is well settled that a ‘step in prosecution’ of an action, as used in La. C.C.P. art. 561, requires some formal move, before the court, intended to hasten judgment.” This Circuit has recognized that “before the court” means that the step must appear in the court record. For instance, we have determined that ongoing negotiations do not necessarily relieve the negotiating parties of their duty to protect the court record once suit has been filed for purposes of determining whether the action has been abandoned.

In the present case, the only copy in the record of the September 24, 2002 letter sent to the district court judge was attached to Turner’s opposition memorandum dated May 26, 2005. It appears that that letter was sent to the judge via facsimile showing a date of September 24, 2002. However, the letter is stamped as having been received by the clerk on May 26, 2005. This letter does not appear anywhere else in the record on appeal, and there is no indication that the | ¡¡letter was ever filed into the record prior to 2005. Thus, Turner failed to protect the record as required by LSA-C.C.P. art. 561. Further, a letter by plaintiff to a trial judge, requesting that the matter be set for trial, does not constitute a step in prosecution taken in the trial court within the period required by statute to avoid abandonment. All pleadings or documents to be filed in an action or proceeding instituted or pending in a court shall be delivered to the clerk of court for such purpose. LSA-C.C.P. art. 253. A party obliged to file a pleading within a time limitation must ensure actual delivery, since it is the time when the clerk receives actual delivery which determines whether that pleading has been timely filed.

In addition, as a motion to set for trial, the letter does not meet the requirements of LSA-R.S. 13:850, which are mandatory. A litigant can only avail himself of the convenience of filing a pleading by facsimile transmission if the litigant ensures that the original document is received by the clerk’s office, along with all applicable fees, within five days, exclusive of legal holidays.

Turner urges, and we agree, that LSA-C.C.P. art. 561 is not designed to dismiss actions on technicalities but to dismiss those actions which, in fact, have been abandoned. While we do not question that Turner did fax the letter to the court on September 24, we are obliged to follow the law and the jurisprudence requiring court record activity or formal discovery to defeat an abandonment motion.

For the foregoing reasons, the judgment is affirmed. Turner is assessed all costs of this appeal.

AFFIRMED.

      . James v. Formosa Plastics Corp. of Louisiana, 01-2056 (La.4/3/02), 813 So.2d 335, 338 (citations omitted).

      . Isaac v. Benson Chevrolet Co., 04-419 (La. App. 5 Cir. 9/28/04, 885 So.2d 38) (citations omitted).

      . Burkett v. Resolution Trust Corp., 99-1163 (La.App. 5 Cir. 2/29/00), 757 So.2d 819, $21.

      . Lizama v. Williams, 99-1040 (La.App. 5 Cir. 3/22/00), 759 So.2d 865.

      . Tinsley v. Stafford, 1993-1668 (La.App. 1 Cir. 10/7/94), 644 So.2d 677, writ denied, 1994-2753 (La. 1/6/95), 648 So.2d 933.

      . Pelt v. Guardsmark, Inc., 451 So.2d 621 (La.App. 5 Cir. 1984); Granger v. Jefferson Parish Dep’t of Recreation, 00-1811 (La.App. 5 Cir. 3/14/01), 783 So.2d 471.

      . Granger v. Jefferson Parish Dep’t of Recreation, supra.


author: CLARENCE E. McMANUS, Judge.

text:
    Renata S. LUMAR v. ZAPPE ENDEAVORS, L.L.C., ABC Insurance Company, DEF Insurance Company and XYZ Insurance Company.
    No. 06-CA-317.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Philip Bohrer, Bohrer Law Firm, Attorney at Law, Baton Rouge, Louisiana, Chad A. Aguillard, Attorney at Law, New Roads, Louisiana, for Plaintiff/Appellant.
    Brian C. Bossier, Erin H. Boyd, Blue Williams, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ^Plaintiff, Renata S. Lumar, appeals from the trial court’s judgment dismissing her tort claims against defendant, Zappe Endeavors, LLC (“Zappe”). We affirm the decision of the trial court.

Ms. Lumar contended that she was employed by Aramark Management Services, (hereinafter “Aramark”) and that on October 4, 2003 she was working at the Zappe’s potato chip factory. Zappe Endeavors, LLC, (hereinafter “Zappe”) contracted with Aramark for cleaning services to the factory. Ms. Lumar was injured when her hand got caught in the conveyor belt of the machine she was cleaning.

Ms. Lumar filed suit against Zappe in tort and products liability, and also intentional tort. She later amended her petition to name Aramark as a defendant.

Zappe filed a motion for summary judgment, alleging that it was immune from tort liability under the worker’s compensation statutes. Zappe contended that it was the statutory employer of Aramark, and that Ms. Lumar would be unable to prove any intentional tort to constitute an exception to the worker’s compensation exclusivity provisions. Zappe additionally asserted that Ms. Lumar was an independent contractor performing manual labor, and therefore worker’s compensation indemnity was her exclusive remedy.

|sThe trial court granted summary judgment in favor of Zappe, finding that it was liable for worker’s compensation and it was immune from tort liability. In this appeal, plaintiff challenges the court’s finding that Zappe is immune from tort liability.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no, genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.... ” LSA-C.C.P. art. 966(A)(2).

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. LSA-C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting .of the motion. Underwood v. Best Western Westbank, Inc., 04-243 (La. App. 5 Cir. 8/31/04), 881 So.2d 1271. Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La. App. 5 Cir. 6/28/05), 907 So.2d 804.

|4The court’s review of a grant or denial of a motion for summary judgment is de novo. Ocean Energy v. Plaquemines Parish Gvmt., 04-0066 (La.7/6/04), 880 So.2d 1. Thus, we ask the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id.

The facts are not in dispute in this case. Aramark, an independent contractor, contracted with Zappe to provide cleaning services for Zappe’s manufacturing facility. Plaintiff was in the course and scope of her employment, providing those cleaning services, when she was injured.

LSA R.S. 23:1032 provides that:

A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
(b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

LSA-R.S. 23:1021(7) provides that:

(7) “Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking Rand unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.

Thus, LSA-R.S. 23:1021(7) allows workers’ compensation coverage for a certain type of independent contractor, one who is engaged in manual labor for a substantial part of the work time, and LSA-R.S. 23:1032 allows tort immunity to that type of independent contractor’s “employer.” As the court noted in Fleniken v. Entergy Corp., 780 So.2d 1175, 95 A.L.R.5th 665, 2000-1824 (La.App. 1 Cir. 2/16/01) unit denied, 2001-1268, 793 So.2d 1250 (La.6/15/01), the Legislature has seen fit to extend workers’ compensation coverage to certain independent contractors who perform manual labor and that extension of coverage encompasses tort immunity for the employer who contracts with the laborer. Aramark performed cleaning services, which are considered manual labor , and accordingly is immune from tort liability.

Ms. Lumar contends that she is not an independent contractor, but an employee of an independent contractor, and therefore she is not limited by the exclusivity provisions of the worker’s compensation statutes. In finding Ms. Lumar’s argument to be without merit, the trial judge said that “The court does not see the distinction being made by plaintiff. Plaintiff falls within the class of independent contractors contemplated by this statute which perform manual labor, and are therefore covered by worker’s compensation.” We agree with the trial court.

Aramark performs its duties through its employees, and is liable for the acts of its employees. The limitations applicable to Aramark are also applicable to its employees. Furthermore, LSA-R.S. 23:1021 does not state that it is not applicable to independent contractors who are partnerships, corporations or other juridical | ^persons, and does not limit itself to independent contractors who are natural persons only. Pursuant to LSA-R.S. 23:1021, plaintiff is entitled to collect worker’s compensation benefits, and is prohibited from filing actions in tort, against Zappe.

For the above discussed reasons, the decision of the trial court granting summary judgment in favor of Zappe, dismissing plaintiffs claims in tort, is affirmed.

AFFIRMED.

      . See Ranee v. Harrison Company, Inc., 31,-503 (La.App.2d Cir. 1/20/99), 737 So.2d 806, writ denied, 99-0778 (La.4/30/99), 743 So.2d 206 for a definition of “manual labor.” Neither party disputes that Ms. Lumar was performing manual labor at the time of the accident.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Jane Pollard JEFFERSON v. Anthony JEFFERSON.
    No. 06-CA-301.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Paul L. Billingsley, Attorney at Law, Hammond, Louisiana, for Plaintiff/Appellant.
    Steven F. Griffith, Sr., Attorney at Law, Destrehan, Louisiana, for Defendant/Ap-pellee.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¿Plaintiff, Jane Jefferson, brings this appeal from a judgment of the trial court on traversals in an action for partition of community property. We affirm the judgment.

This matter began with the filing of a partition of community property by Anthony Jefferson. Mr. Jefferson filed a sworn detailed descriptive list in which he listed only one community asset, the family home. Mrs. Jefferson filed an amended sworn descriptive list to which she added Mr. Jefferson’s retirement accounts as an asset of the community. Mrs. Jefferson also listed a number of debts allegedly owed to her by Mr. Jefferson. These debts total $53,269.00.and are derived from uninsured fire damage at the family home. A second amended descriptive list, which itemized additional losses in the fire, increased the debt for the damage to $71,424.71.

After a hearing on the merits, the trial court rendered a judgment on traversals in which it valued the family home at $76,000.00, ordered that all claims | sto retirement benefits are to be divided according to the Sims formula, and awarded reimbursement in the amount of $34,242.45 to Mrs. Jefferson for expenses incurred. The trial judge gave written reasons for judgment in which he discusses each of Mrs. Jefferson’s claims for reimbursement. Ultimately, the trial court concluded that Mrs. Jefferson was entitled to reimbursement as follows:

1) J.D. Jefferson Enterprises $15,040.00
2) Material Costs 6,754.21
3) Bernard Remodeling 12,000.00
4) William Gilbert Workshop 107.42
5) Rev. Eugene Turner 300.00
6) Landry Lumber 42.82
TOTAL ■ $34,242.45

It is from that judgment that Mrs. Jefferson appeals. Mr. Jefferson also filed a motion for appeal, which he subsequently withdrew. Mr. Jefferson has filed an answer to the appeal in this Court.

Mrs. Jefferson’s claims stem from a consent judgment signed by the parties in 1995, which provided that Mr. Jefferson was to maintain homeowners’ insurance on the family home, and automobile insurance on Mrs. Jefferson’s vehicle. Although that judgment is not in the record before us, Mr. Jefferson admitted at trial that he was required to maintain both insurances. He further testified that he did so for two or three years, but did not continue the coverage. However, Mr. Jefferson did not produce any documents to substantiate those facts, and could not recall the cost of either types of insurance. Mr. Jefferson testified that he knew that the home caught fire, destroying the kitchen and dining room, and causing smoke and water damage to other portions of the home. He further testified that he knew that the home was repaired, although he did not pay for any |4portion of that cost. Mr. Jefferson stated that he did not pay for the replacement of any of the contents lost in the fire or arrange for alternative living expenses for Mrs. Jefferson after the fire.

John Pollard, Mrs. Jefferson’s brother and a licensed contractor, testified that Mrs. Jefferson’s home consisted of a trailer around which a house was built. The fire, which started in the kitchen, destroyed the side and top of the trailer as well as all the rafters coming across the other side to the new addition. The back side of the house also burned.

Mr. Pollard stated that the kitchen was totally destroyed, requiring the removal and replacement of all cabinets, appliances and flooring. There was minimal damage in the living room, which only required repainting. The back bedroom and bathroom and the hallway connecting them were completely destroyed. Rafters, roof and walls all had to be replaced.

Mr. Pollard testified that because his sister had no insurance to cover the cost of the repairs, he did the job for cost. The original estimate for the work was $15,040.00. However, Mr. Pollard stated that he only received about $11,000.00. Mr. Pollard did not have actual receipts for materials purchased for the house, but he stated that the actual cost was more than $15,000.00. He explained that, because it was his sister, he worked on her home after coming home from his regular employment. He also put in some of his own money and enlisted friends to donate their time to help him finish the repairs.

Mrs. Jefferson testified that her home was heavily damaged in a fire that started in the kitchen when her seventeen-year-old son left a hamburger frying on the stove and went into another part of the house. She stated that she had no fire insurance coverage on her home because her former husband did not maintain the coverage as ordered by a prior judgment of the court. Because she had no money 1 sto repair the damage, she turned to her brother, a licensed and bonded contractor for help. He repaired most of the damage; however, some damage remained to be addressed. She hired Bernard Remolding to do some of the-work, and Reverend Eugene Turner to do the electrical work. Mrs. Jefferson also provided the court with evidence that she purchased additional materials amounting to $6,754.21. She has not yet replaced the air conditioner lost in the fire because of budget constraints. The estimated cost of that repair is $4,898.00. Mrs. Jefferson also lost household goods, clothes and personal items in the fire.

In brief to this court, Mrs. Jefferson argues that the trial court erred in denying various claims she made. Specifically, Mrs. Jefferson asserts the trial court erred in denying her claim for diminished value of the home, for reimbursement for auto insurance and homeowners’ insurance premiums paid, for loss of movables, alternate living expenses, and for personal items and clothing. Additionally, Mrs. Jefferson argues the trial court erred in reducing her recovery for out of pocket repair costs by failing to assign the reimbursement expense as a sole obligation of Mr. Jefferson.

Mr. Jefferson argues that Mr. Pollard should not have been accepted as an expert by the court, and further, that the accounting presented at trial is insufficient to support the award regarding the repair work done by Mr. Pollard. Mr. Jefferson also asserts the documentation supporting the other claims including Bernard Remolding and additional materials is insufficient. Finally, Mr. Jefferson avers that the trial court committed legal error in holding him responsible for the fire, since it was caused by a seventeen-year-old in the custody of Mrs. Jefferson.

Because Mr. Jefferson’s assignment of error that he should not be held liable for any damages related to the fire must be considered before a review of the damages awarded, we will review that argument first. The basis for Mr. | fiJefferson’s argument is that the fire was caused by the couple’s teenage son. Mr. Jefferson argues that, because Mrs. Jefferson has custody of the minor, she is legally responsible for his actions.

Mr. Jefferson’s argument mischar-acterized the reason for the finding of his liability. His liability is based on his failure to comply with the consent judgment to provide insurance, not for causing the fire. He is now responsible, not vicariously because of the actions of his minor son in causing the fire, but for his own actions in allowing the insurance to lapse. This argument is without merit.

Having found Mr. Jefferson is liable for the uninsured losses, we will review Mrs. Jefferson’s claims for reimbursement.

The trial court gave extensive and specific reasons for judgment. As to Mrs. Jefferson’s claim for diminished value of the home, Mr. Jefferson valued the home at $80,000.00, while Mrs. Jefferson diminished the value to $72,000.00. The trial court considered the value placed on the home by both parties, and ultimately valued the home between the amounts to allow for some decrease in value. Given the trial court’s wide discretion in these matters, we do not find an abuse of discretion.

The trial court correctly found that Mrs. Jefferson’s claims for reimbursement for homeowners’ and automobile premiums should be denied. Mr. Jefferson admitted it was his legal responsibility to maintain these policies and he did not do so. However, because Mrs. Jefferson offered no proof that she paid the premiums, she is not entitled to reimbursement.

In considering Mrs. Jefferson’s claims regarding additional living expense during the home repairs and loss of private property in the fire, the trial court noted that “no proof whatsoever was adduced to show the values” of these claims. It then denied those claims.

|7We recognize that it is undisputed that Mr. Jefferson took on the responsibility to maintain homeowners’ insurance on the community home by consent judgment. It is also undisputed that he did not meet that obligation. Nevertheless, the claim for Mrs. Jefferson’s additional losses sound in tort and we find no error in the denial of those claims by the trial court on a traversal proceeding.

Mrs. Jefferson also maintains in her last assignment of error that the trial court erred in reducing her recovery for repair costs by failing to assign the reimbursement expense as a .sole obligation of Mr. Jefferson. Mrs. Jefferson does not argue this assignment other than to state that the trial court ruled the repairs were a debt of the community. We find no such ruling or reduction of the reimbursement in either the judgment or reasons for judgment. Thus, that assignment is not applicable to the judgment before us and will not be considered.

Mr. Jefferson argues that the trial court erred in allowing Mrs. Jefferson to proceed In Forma Pauperis. The record contains a Motion for Waiver of Costs of Appeal filed by Mrs. Jefferson in which she asserts that she has been allowed to proceed in the trial court In Forma Pau-peris, and she pleads for that status on appeal. That motion was granted by the trial court on January 9# 2006. There is no indication that Mr. Jefferson has traversed the request for that status at any point in the trial court. Since this matter has been pending in the trial court for over two years, affording Mr. Jefferson an opportunity to traverse the In Forma Pauperis status, we are not inclined to remand this matter for a hearing on the status. See: Guillory v. Nicklos Oil & Gas Co., 315 So.2d 914 (La.App. 3 Cir.1975).

Mr. Jefferson argues the trial court erred in accepting the testimony of Mr. Pollard as expert testimony. At the hearing Mr. Pollard was accepted as an expert in residential construction. A trial judge is vested with wide discretion in | sdetermining the competence of an expert witness. Competence of an expert witness is a question of fact to- be determined within the sound discretion of the trial judge. Rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Higgins, 03-1980 (La.4/1/05), 898 So.2d 1219; cert. denied, Higgins v. Louisiana, — U.S. -, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

At the hearing, Mr. Pollard recited his experience in the building trades and explained that he has been involved in both residential and commercial building for twenty-seven years. He is a member of the pipe fitters union and is a supervisor for Hy-Teeh Services, a licensed contractor. His job is to estimate the costs of new construction or renovations on potential jobs. He is also a licensed plumber. The trial court afforded Mr. Jefferson’s counsel the opportunity to cross-examine Mr. Pollard on tender, and ultimately Mr. Pollard was accepted by the court as an expert in residential restoration construction. Given the circumstances, we do not find the trial court abused it vast discretion in accepting Mr. Pollard’s expert testimony. This assignment is without merit.

Mr. Jefferson argues that the trial court lacked sufficient evidence to support the award for reimbursement to Mr. Pollard and Bernard Remodeling. We disagree. The testimony and exhibits presented by Mrs. Jefferson, none of which were disputed by any evidence from Mr. Jefferson, are sufficient to support the trial court’s decision.

For the foregoing reasons the trial court judgment is affirmed.

AFFIRMED.

      . Sims v. Sims, 358 So.2d 919 (La.1978)

      . The consent judgment is attached to Mrs. Jefferson’s brief to this court. The appellate briefs of parties and attachments thereto are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to therein if those facts are not in the record. Distefano v. B & P Const., Inc., 04-25 (La.App. 5 Cir. 5/26/04) 874 So.2d 407; writ denied, 04-1735 (La.10/15/04) 883 So.2d 1058. However, we find Mr. Jefferson's testimony to his obligation under the consent judgment constitutes a judicial confession. La. C.C. art. 1853.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Byron MILLET.
    No. 2005-KA-1122.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      Eddie J. Jordan, Jr., District Attorney, Autumn L. Cheramie, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR. and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|, STATEMENT OF THE CASE

On November 12, 2004, under case number 453-646, the defendant-appellee was charged by bill of information with one count of possession of cocaine, a violation of La. R.S. 40:967. He entered a not guilty plea at arraignment on November 17, 2004. On January , 4, 2005 the State entered a nolle prosequi. Ten days later, on January 14, 2005, the State reinstituted the prosecution under the present case, docket number 455-347. The defendant was arraigned on the new bill on February 15th and entered another not guilty plea. On February 28, 2005 the defense filed a motion to quash the bill of information which the court granted on March 18th. On March 23rd and again on May 9th, the State filed a motion for an appeal. This appeal follows.

DISCUSSION

The sole issue in this appeal is whether the trial court erred when it granted the defendant’s motion to quash. Although the court gave no reasons at the time it ruled, it later issued a per curiam, which actually related to over twenty-five cases including the instant one, explaining that it granted the motion to quash because the State had earlier entered a nolle prosequi when the court had denied a motion to continue which failed to conform with La. C.Cr.P. art. 707. In his written motion to quash, the defendant had averred that this action by the State had violated his | ¡.constitutional right to a speedy trial. The State argues in its brief that it has plenary authority under La.C.Cr.P. art. 576 to dismiss a charge and then reinsti-tute in any ease, such as this one, where doing so does not circumvent the statutory time limits for commencing trial under La. C.Cr.P. art. 578.

The State is correct that it has the authority to enter a nolle prosequi and reinstitute the charge. Both this Court and the Louisiana Supreme Court have recognized this authority, but have also recognized that it may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial. See State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, and State v. Scott, 2004-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843. In Scott, this Court discussed the factors to be considered with regard to a defendant’s constitutional right to a speedy trial rights:

The right to a speedy trial is guaranteed by both the federal and state constitutions. U.S. Const. Amendment 6; La. Const. Art. I, § 16. In addition to the statutory right to a speedy trial recognized by La.C.Cr.P. art. 701(A), a defendant also has a fundamental, constitutional right to a speedy trial. In analyzing a constitutional speedy trial violation claim, the four factor test forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) is applied; to wit: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The initial factor, the length of the delay, is often referred to as the “triggering mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker factors is unnecessary. See State v. Santiago, 03-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671. Under Barker, the peculiar circumstances of the case determine the weight to be ascribed to the length of the delay and the reason for the delay. State v. Reaves, 376 So.2d 136, 138 (La.1979). Something that is acceptable in one case may not be acceptable in another because the complexity of the case must be considered. Gray v. King, 724 F.2d 1199, 1202 (5th Cir.1984), citing Barker, 407 U.S. at 531, 92 S.Ct. 2182. The manner of proof must also be considered, as must the gravity of the alleged crime. Id.
|oA defendant challenging the state’s dismissal and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 00-0511, p. 7 (La. App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142.

Scott, p. 11-12, 913 So.3d at 850-51.

In Love, the Court discussed the relationship of the appellate and trial courts and stated:

Because of the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.

Id., at pp. 9-10, 847 So.2d at 1206. In addition, in State v. Harris, 2003-0524 (La. App. 4 Cir. 9/10/03), 857 So.2d 16, this Court stated:

Thus, ... the proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was “palpable abuse” on the part of the trial court in granting the motion to quash.

Id., at pp. 7-8, 904 So.2d at 770.

Recently, in State v. Batiste, 2005-1571, p. 5 (La.10/17/06), 939 So.2d 1245, the court stated:

A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Id.

In Batiste, the Court found that the reason for the dismissal of the earlier charge was because the victim was unavailable to testify. The Court then considered the defendant’s speedy trial claim and found that although nineteen months elapsed |4between the filing of the original bill and the quashing of the charges in the second case, the reasons for the delay were not solely those of the State. The Court found that there was no intentional delay on the State’s part to gain a tactical advantage, that the defendant did not assert his speedy trial right prior to filing his motion to quash, and that there was no suggestion that his defense was impaired by'the delay. The court then reversed the trial court’s quashing of the charge and this Court’s affirmation of the trial court’s ruling.

Under Barker, the first question is whether the delay was sufficient to act as a triggering mechanism. In this case, it appears that it was not. Only four months and one week elapsed from the filing of the original bill of information to the granting of the motion to quash, and only three months elapsed from the filing of the original bill and the filing of the motion to quash. While the Louisiana Supreme Court held in State v. Reaves, 376 So.2d 136 (La.1979), that a delay of three and one-half months was sufficient to violate the defendant’s rights, that case involved misdemeanor possession of marijuana, not a felony as in the instant case, and the defendant in Reaves repeatedly made fruitless court appearances until he was forced to enter a guilty plea. In this case the defendant made court appearances a total of four times prior to the filing of the motion to quash; two were arraignments, one was a motion hearing, and one was a trial setting.

Furthermore, this Court has more recently determined that delays of less than a year were not sufficient to trigger a consideration of the other Barker factors. For example, in State v. Pham, 97-0459 (La.App. 4 Cir. 3/26/97), 692 So.2d 11, the Court found that a nine-month delay for a defendant forced to travel from Houston to New Orleans after being charged with cheating at gaming did not merit the granting of a motion to quash. In State v. Keller, 2003-0986 (La.App. 4 |fiC3r. 10/1/03), 859 So.2d 743, the Court found that a six and one-half month delay between the filing of the first bill of information and the granting of the motion to quash the reinstituted bill was not presumptively prejudicial and that the trial court had abused its discretion when it granted the motion to quash. In State v. Gray, 98-0347 (La.App. 4 Cir. 10/21/98), 766 So.2d 550, there was an eleven-month delay. The court suggested that the delay may not be presumptively prejudicial as most prior cases considered by the Court had involved delays of more than one year. However, the Court evaluated the remaining Barker factors because of Reaves,

Considering the very short amount of time between the filing of the original bill of information and the granting of the motion to quash, the trial court’s decision would be difficult for this Court to uphold. However, it should be noted that the trial court apparently was motivated mainly by its concern that the State wanted to nolle prosequi the defendant’s case and reinstate the case on the same charge without properly complying with the procedure to request a continuance as provided by C.Cr.P. art. 707 et seq. In particular, the State did not secure the presence of a police officer to testify at the motion hearing held on December 10, 2004, resulting in the court determining that there was no probable cause and ordering the defendant’s release from jail. Three weeks later when the matter was called for trial, the State was again unable to go forward and entered the nolle prosequi when the court denied its motion for a continuance. As referenced in its per cu-riam, the trial court concluded that the State did not comply with C.Cr.P. art. 707 et seq. However, we find that quashing the prosecution is a very harsh Rremedy. The day the State entered the nolle prose-qui was the first trial setting, and the defendant had already been released from' jail. Thus, viewing the record as a whole, it appears that the decision to quash the prosecution was a palpable abuse of discretion.

CONCLUSION

The State’s assignment of error has merit. Accordingly, the trial court’s judgment is reversed and the matter remanded.

REVERSED AND REMANDED.

BELSOME, J., Concurs in the Result.

      . The time limit in this case was two years and was not even close to expiring.

      . Ultimately in Gray this Court reversed the trial court’s decision granting the motion to quash, finding that the State had not attempted to gain a tactical advantage and that the defendants had failed to show sufficient prejudice. The Supreme Court granted writs and reversed this Court's decision on the grounds that the State had failed to timely move for an appeal from the trial court’s granting of the motion to quash. State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.