author: GASKINS, J.

text:
    Traci Christine PAYNE, Plaintiff-Appellant v. Robert Charles PAYNE, Jr., Defendant-Appellee.
    No. 41,049-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2006.
    Rehearing Denied June 23, 2006.

      Mason L. Oswalt, for Appellant.
    Donald L. Kneipp, Monroe, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   GASKINS, J.

bln this child custody case, the mother appeals from a trial court judgment rejecting her request to move to Mississippi with the parties’ six-year-old daughter. We reverse the trial court judgment and remand.

FACTS

The parties, Traci Christine Gatewood and Robert Charles Payne, Jr., married in March 1998. Traci was a resident of Jackson, Mississippi, but moved to West Monroe, Louisiana, after she married Robert. Of their marriage, one child was born: Elizabeth Grace Payne (DOB 7/16/99). In about November 2003, Robert began an affair with Ms. Gordon. Traci learned of the situation on January 13, 2005, when she received an anonymous phone call at work. She confronted Robert; although he initially denied the affair, he eventually admitted that the allegation was true. He refused to move from the family home when Traci asked him to leave. Later that week Traci learned of a second affair when a man called to inform her that her husband was having an affair with his wife.

On January 20, 2005, Traci filed a petition for divorce. She requested that she be awarded primary custody of Elizabeth. In addition to the father’s adultery, she also cited his illegal drug use as making him unfit to have custody. She also sought child support, spousal support and use of the matrimonial domicile. Due to Robert’s temper — as demonstrated by the temporary restraining order obtained against him by his paramour, Ms. Gordon — Traci sought a protective order to prevent him from threatening or harming her or her family. On January 26, 2005, the trial judge signed an order granting Traci’s request for a protective order.

LA hearing officer conference was held on April 5, 2005. The hearing officer recommended that there be judgment granting the mother exclusive use of the family home, designation as domiciliary parent of the child under a joint custody plan, child support of $723 per month, and spousal support in the form of payment of the second mortgage on the family home. Robert was awarded alternating weekend visitation, plus certain specified weekday visitation. He was ordered to vacate the family home.

The father filed an objection to the hearing officer conference report, objecting to the findings as to his income surplus and his wife’s salary. He also denied sending his wife harassing emails at work and claimed that she had already accepted a job in Jackson, Mississippi. He asserted that he should be awarded custody, use of the home and support. However, on April 22, 2005, the court made the hearing officer’s recommendations the interim order of the court.

On April 25, 2005, Traci filed a motion to relocate to Brandon, Mississippi, to accept a job offer in Jackson. Her current employer, Haverty’s, had offered her a position which would increase her income by 20 percent and give her opportunities of advancement. The move would also allow her to be’ close to her parents who live in Brandon. She asserted that the father’s financial circumstances were likely to re-suit in bankruptcy and that she and the child would be forced to move from their current residence. Traci also stated that, should they move to Mississippi, she was willing to modify the custody agreement to give the father substantially the same time with the child.

| sA judgment of divorce was signed on April 27, 2005.

On April 29, 2005, Robert filed an answer, requesting joint custody and use of the family home. He also filed an objection to the proposed move to Brandon.

The hearing on the motion to relocate began on May 11, 2005, and was continued over several court settings. At the conclusion of the hearing, the trial court denied the motion, finding that Traci had not carried her burden of proving that relocation was in the best interest of the child. According to the factor sheets weighing the various factors under La. C.C. art. 134 and the relocation statute, the trial court found the parents were essentially equal. The court did find the mother surpassed the father on the issue of moral fitness due to his adultery and use of steroids. However, the court noted in its judgment that several aspects of the child’s life, such as school, church, dance and gymnastics, were rooted in her current environment.

The mother appeals.

LAW

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 1997-0541 (La.2/6/98), 708 So.2d 731.

A parent seeking to remove his or her child from the jurisdiction of the court has the burden of proving that: (1) the move is made in good faith; and (2) in the child’s best interest. La. R.S. 9:355.13; Blackburn v. Blackburn, 37,006 (La.App.2d Cir.1/29/03), 836 So.2d 1222. In ^determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life. La. R.S. 9:355.13.

In making a determination regarding a proposed relocation, a court is required to consider the factors specified in La. R.S. 9:355.12, which are:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

Although the statute mandates that all of the factors set forth be considered, it does not require a court to give preferential consideration to |Bany certain factor or factors. Curóle v. Curóle, 2002-1891 (La.10/15/02), 828 So.2d 1094. The trial court is vested with vast discretion in matters of child custody and visitation, and its determination is entitled to great weight and will not be disturbed absent a clear showing of abuse of discretion. Blackburn v. Blackburn, supra.

DISCUSSION

At the outset, we agree with the mother that the trial court implicitly found that her request for relocation was made in good faith. The record fully supports a finding that the mother desired to move for both emotional and financial reasons— she wished to move home near her parents to receive their support as she sought to rebuild her life following a devastating divorce caused by her husband’s infidelity and to take a higher paying job which would improve the standard of living for both herself and the child.

Consequently, the issue before us is whether the trial court was clearly wrong in finding that the mother failed to carry her burden of proving that the move to Mississippi was in the best interest of the child. After a careful review of the record, we find that the trial court erred in denying the mother’s request to relocate to Mississippi.

The evidence indicates that the mother has been the child’s primary caregiver since birth. While the mother’s life has apparently revolved around her daughter and meeting the needs of the child, the father has had numerous outside interests which have distracted him from family life. These interests included two extra-marital affairs and body building. One of the affairs involved periodic weekend trips with the paramour and frequent, | (¡sometimes daily, visits to her home. While some of the father’s illicit conduct took place while the child was in school, some of it occurred at times when the father could have been taking care of the child. The body building led to his illegal use of steroids while living in the same house as the child. The father insisted that he kept his drug cache and syringes in a locked box in the bathroom out of the child’s reach and that he properly disposed of his used needles; the mother recounted finding syringes in the garbage can when the child was only four years old and the father locking himself in the bathroom for long periods of times. The father admitted throwing out the box only after his wife found out about his affairs. He insisted that steroids are not addictive and denied ever suffering from side effects such as mood swings or aggression.

The evidence does indicate that the father eventually began to take a more active role in the child’s life, but only after the failure of his attempts to dissuade the mother from filing for divorce. Although the child has enjoyed a close relationship with the paternal grandparents in West Monroe, she has an equally loving relationship with the maternal grandparents in Mississippi.

The child was only five years old at the time of trial and was completing kindergarten. At this very young age, she was not yet so invested in any school or activity that relocation would cause a detrimental impact on her development. She had attended different churches with her parents; thus, it could not be said that she was established in one particular church. She has no special needs which would hamper her ability to adjust |7to a new environment. To the contrary, she is described as “extremely smart” by her maternal grandmother. It is to be noted that the proposed relocation is not to a totally unfamiliar area where she would be surrounded by strangers; to the contrary, it is to her mother’s hometown, a place she has visited often and the home of relatives she knows well.

As to the feasibility of maintaining the father’s relationship with the child after the relocation, we observe that during the two years he dated the mother before marriage, the father was able to travel from West Monroe to the mother’s home in Mississippi every weekend. This indicates that the distance between the two locales is sufficiently close that the father should have no problem continuing his relationship with his daughter. Also, the mother has indicated a strong willingness to continue to facilitate the father/daughter relationship, as she has done throughout the child’s life.

The move to Mississippi would present mother and daughter with many opportunities. The Jackson area offers many educational, social and cultural benefits. Financially, the move would allow the mother to increase her salary by 20 percent. It would also open up the possibility of advancement within her company. Given the financial hardships faced by the family in West Monroe, particularly during a period when the father did not earn a salary for many months, the benefits of steady and profitable employment with a company which obviously holds the mother in high esteem are not to be dismissed lightly.

Prior to her marriage, the mother had lived in the Jackson area her entire life. She only moved to West Monroe as a result of her marriage. |sNow that the marriage has ended due to the revelation of the father’s two affairs, one of which was long-term, the mother understandably desires to move home. There she will enjoy the loving support of her family as she tries to build a life for herself and her child. While the father has taken an increased interest in the child, his actions have not necessarily been consistent with cooperative parenting with the mother. The mother cannot be faulted for wishing to return home with her young child.

We find that the trial court was clearly wrong in finding that the proposed relocation to her mother’s hometown was not in the best interest of this young child. The relocation offers financial and emotional stability to the child’s life, which has already been disrupted by the destruction of her parents’ marriage and their ensuing divorce. Whereas a much older child might be inextricably connected to her environment and community to the point that removal would be to her detriment, this child is still so young that her youth affords great flexibility and adaptability. The trial court was manifestly erroneous in placing too much weight on such factors as school ties and activities for such a young child. At this early point in her academic career, a change in schools would be much less disruptive than it would be if she were older and had years of emotional attachment to a particular school. She has not attended just one church her entire life. While she has taken dance and gymnastics lessons in West Monroe, her mother testified that such lessons are also readily available in Jackson.

|flWe remand the matter to the trial court for implementation of a custody agreement that allows the father alternating weekend visitation and adequate summer visitation.

CONCLUSION

The judgment of the trial court denying the mother’s request to relocate is reversed. The matter is remanded for further proceedings in compliance with this opinion.

Costs are assessed against the father.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY, and MOORE, JJ.

Rehearing denied.

      . For example, the evidence indicates that the child was enrolled by her .father, without the mother's knowledge, in gymnastic classes which were taught at a time he knew would be inconvenient for the mother.


source: Caselaw Access Project

license: Public Domain

text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN SELF INSURERS FUND, Plaintiff-Appellee v. RUFINO’S PAINTING & CONTRACTORS, INC., Defendant-Appellant.
    No. 40,620-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2006.

      Gaudry, Ranson, Higgins & Gremillion, LLC, by Daniel A. Ranson, Gretna, for Appellant.
    John T. Scott, West Monroe, for Appel-lee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

liThe defendant, Rufino’s Painting and Contractors, Inc. (Rufino’s) appeals from a trial court judgment ordering the company to pay in excess of $31,000.00 in workers’ compensation insurance premiums to its workers’ compensation insurer, Louisiana Safety Association of Timbermen Self Insurers Fund (Timbermen). For the following reasons, we affirm the trial court judgment.

FACTS

The defendant is a painting and drywall company in the New Orleans area owned by Rufino and Wynonne Saavedra. The business is operated from their home and Mr. Saavedra is the supervisor, overseeing the daily operations of the company. Mrs. Saavedra is the bookkeeper. Rufino’s has some employees that work exclusively for the company; much of the work is done by subcontractors.

Beginning in 1994, Rufino’s contracted with Timbermen to provide workers’ compensation insurance. The premiums were determined by the classification and number of workers insured. If subcontractors failed to provide certificates of insurance, they were insured under the contract with Timbermen. Mrs. Saavedra claimed that each month she furnished payroll information as well as information regarding certificates of insurance for the subcontractors. Each year, Timbermen audited the records to determine if the appropriate amount had been paid for the insurance premiums.

Timbermen hired a private audit service that sent an auditor to the office of Rufi-no’s accountant to conduct the yearly audit. According to Rufino’s, if the auditor needed additional information, such as the 1 ¡¡.classification of employees, or certificates of insurance for subcontractors, Mrs. Saavedra would be contacted and she would supply the needed documentation. Rufino’s contended that for subcontractors without insurance, the usual practice was to include 60 percent of the total amount paid to subcontractors as the cost of labor to be used in calculating the insurance premium. The remaining 40 percent of the price paid was attributable to materials, which had no bearing on the amount of workers’ compensation insurance premiums owed.

A dispute arose over the amount of premiums due for 1998-2000. During those years, a different auditor, Burton Brunson, was assigned to the Rufino’s account. Ru-fino’s claimed that Mr. Brunson never requested additional documentation from Mrs. Saavedra. The company claimed that the auditor did not properly classify employees, improperly considered all of the amounts paid to uninsured subcontractors in computing the insurance premium, and failed to exclude amounts paid to employees and subcontractors who worked on projects for the Orleans Parish School Board (OPSB). The OPSB participated in an owner-controlled workers’ compensation insurance plan and workers on the school board property were covered by that policy.

On September 20, 2002, Timbermen filed suit against Rufino’s, claiming that it owed additional workers’ compensation insurance premiums. The insurer also sought to recover interest and attorney fees in accordance with the contract of insurance.

1 sTrial was held on December 7, 2004, and February 24, 2005. To establish its claim for additional premiums, Timbermen presented the testimony of James Parker, the collections manager with Timbermen. He had formerly served as an auditor with Louisiana Audit Service, the company hired by Timbermen to audit the Rufino’s account. Mr. Parker testified regarding the procedures used in conducting audits and the amount owned by Rufino’s in this case.

According to Mr. Parker, insureds are given notice of the intent to audit and are informed of the date the audit will take place. The insured is asked to meet on the audit date and to bring documents to be reviewed. He stated that, to his knowledge, those procedures have not changed since he left Louisiana Audit Service. Mr. Parker stated that the insured should obtain certificates of insurance from subcontractors when they are hired. In some instances, if an insured furnished a certificate of insurance for a subcontractor after the audit, credit was given.

Mr. Parker discussed the method of arriving at insurance premiums by classifying employees according to their work and then applying various insurance rates assigned to those classes. He stated that a “scopes manual” is used in classifying employees.

Mr. Parker stated that generally the insured will provide information regarding how much of the amount paid to a subcontractor is attributable to materials and how much to labor. The insurance premium is based upon the amount paid for labor. He said that there is a 50 percent cap on amounts paid to subcontractors for labor.

|4Mr. Parker stated that, according to the audit conducted by Mr. Brunson, Rufi-no’s owed $5,322.37 in additional premiums for 1998, $18,145.40 for 1999, and $8,059.36 for 2000.

Mrs. Saavedra testified at trial that Tim-bermen began insuring Rufino’s for workers’ compensation claims in 1994 or 1995. She claimed that an auditor for Timber-men would conduct a premium audit each year by reviewing 1099 forms, the general payroll ledger, quarterly returns, payroll calculations, and names of employees. She stated that the auditor would visit the office of Rufino’s accountant. Later, Mrs. Saavedra would furnish any additional information needed, upon request. Mrs. Saavedra complained that in 1998, 1999, and 2000, when Mr. Brunson was assigned to conduct the audit, she was never contacted to furnish additional information. She testified that she received final audits for 1998, 1999, and 2000, marked corrections on the reports and returned them to Timbermen. She said that several employees were unclassified and that she had certificates of insurance for some of the subcontractors, showing that they should not have been included in the premium calculation.

Mrs. Saavedra also contended that in 1999 and 2000, Rufino’s did some work for the OPSB. She claimed that, because those workers were covered by the insurer of the OPSB while working on those projects, that portion of the payroll was to be excluded from the amounts used by Timber-men to compute workers’ compensation premiums. Regarding subcontractors without insurance, Mrs. Saavedra claimed that prior auditors |Rused 60 percent of the total amount paid to subcontractors without insurance as the labor sum used in calculating the insurance premium.

Mrs. Saavedra testified that, according to the usual procedure prior to 1998, when the company account was audited, she would only provide documentation when she was asked for it. She claimed that she did not see the 1998 audit report until June 7, 1999. She asserted that when she noticed what she perceived to be inaccuracies in the audit, she did not furnish any documentation to support her claims until 2002 because that was when the information was requested. However, she claimed that she corresponded with Timbermen to dispute the audit findings and that- she made notations on the audit results to show the correct classification of employees and what she perceived to be the correct premium amounts. Also, she claimed that she attached certificates of insurance for some of the subcontractors who should have been excluded from the premium calculations.

Mrs. Saavedra claimed that she corresponded with Mr. Brunson in October 2001, and in January 2002. Mrs. Saavedra identified correspondence to Mr. Brunson in 2002 in which she claimed that she sent copies of the 2000 disbursement journal for subcontractors, breaking down the labor and material and noted which jobs were covered by the OPSB certificate of insurance. Mrs. Saavedra confirmed that she never personally met with Mr. Brunson. She asserted that, until Mr. Brunson did the audits, there was always a 60/40 split for the labor and materials for subcontractors. She testified that any failure on her part to submit sufficient information was attributable to not knowing when the audits were to be conducted. She | (¡reiterated that she waited for Mr. Brun-son to request additional information from her.

Mrs. Saavedra identified a letter to Tim-bermen’s attorney indicating that she thought a reaudit was being conducted, but that she was not aware of when that had been scheduled.

On rebuttal, Timbermen called Dana Denney to testify. Ms. Denney is employed by Timbermen in the audit department, handling problem audits. She stated that, regarding Rufino’s objection to the audits for 1998, 1999, and 2000, the only documentation Mrs. Saavedra provided was her corrections on the audit report, indicating what she claimed to be the correct figures. Ms. Denney sent a letter to Louisiana Audit Service, asking that the defendant’s audits for the years in question be reexamined, with the understanding that Mrs. Saavedra would be present for the reaudit. She stated that documents were faxed to Louisiana Audit Service, but she was not sure which documents they were.

Timbermen also called Burton Brunson to testify on rebuttal. Rufino’s objection to his testimony was overruled. Mr. Brun-son testified that he was employed by Louisiana Audit Services and did workers’ compensation insurance audits. He stated that he audited the Rufino’s account several times and always had difficulty getting cooperation from Mrs. Saavedra. He said that he scheduled audits by sending out a letter suggesting a time for the audit. If that time was not convenient, he would telephone to set up another time for the audit. According to Mr. Brunson, on three different occasions he set meetings with Rufino’s accountant and 17Mrs. Saave-dra, but Mrs. Saavedra never appeared. He claimed that she also failed to furnish sufficient documentation for the audits. He stated that she would furnish gross figures effectively saying what the audit should be, but provided no documentation. Mr. Brunson met only with Rufino’s accountant who did not possess all the information needed to satisfactorily complete the audit.

Mr. Brunson stated that after 1997, he never saw Mrs. Saavedra and when she sent documentation, it was never the items that were requested. He testified that Rufino’s had some employees that were possibly exempt from coverage, but he could never get Mrs. Saavedra to furnish documentation. Some of the requested information was on breakdowns of materials and labor. He stated that he needed a payroll of employees, amounts paid to subcontractors who did not have their own insurance, overtime figures, and information to determine which employees and subcontractors did what kind of work. Due to the lack of information, Mr. Brun-son finally assigned all the workers to one category in order to complete the audit.

Mr. Brunson stated that he received letters from Mrs. Saavedra after she objected to the audit results. He denied that he also received disbursement journals for each of the listed subcontractors with breakdowns of materials and labor as claimed by Mrs. Saavedra. He stated that the enclosures with the letters were fragmentary and were insufficient to complete the audit.

|sMr. Brunson was asked about the assertion that some of the subcontractors were covered by the OPSB insurance policy because they performed jobs on the school board property. He stated that, based on the information provided, he could not relate Rufino’s payroll on the OPSB projects and payroll on other work. Regarding Rufino’s request for a reaudit, he said that the auditing service never assigned him to do the work.

On March 28, 2005, the trial court rendered judgment in favor of Timbermen. The court ordered that Rufino’s pay Tim-bermen $31,527.13, together with ten percent interest and $5,000.00 in attorney fees, subject to a credit of $5,426.26 already paid by Rufino’s to the plaintiff. In reasons for judgment, the court essentially found that Mrs. Saavedra did not fulfill her obligation of supplying adequate documentation during the audit process.

The court stated that, according to the evidence, the standard operating procedure for conducting audits was that the auditor sent a notice to the insured that an audit would be conducted. At that time, the insured had the responsibility of providing all necessary documentation to support its position, including certificates of insurance. The court found that Mrs. Saavedra failed to fulfill this duty. The court further found that she did not provide documentation for the changes she claimed were necessary. The court found Mrs. Saavedra not to be a credible witness and found that her testimony was insufficient to support the changes she urged.

The court found the testimony of Mr. Brunson to be credible and supported Tim-bermen’s position that Mrs. Saavedra failed to cooperate with the auditing process and that the company owed an additional amount for 19workers’ compensation insurance premiums. Rufino’s appealed the trial court judgment.

TIMBERMEN’S AUDIT RESULTS

Rufino’s argues that the trial court erred in accepting as accurate the unsubstantiated audit results of Timbermen. According to Rufino’s, the plaintiff had the burden of showing that its audit was accurate. Rufino’s claims that Timbermen failed to carry this burden.

Rufino’s makes numerous allegations regarding the procedures that should have been followed to conduct the audit and the information used to arrive at the premium owed. Specifically, Rufino’s argues that Timbermen failed to properly classify employees, incorrectly calculated the amount paid to uninsured subcontractors to be used in computing insurance premiums, and erred in including amounts paid to subcontractors who were covered under the OPSB policy. These arguments are without merit.

The suit brought by Timbermen against Rufino’s for collection of unpaid insurance premiums arises from a conventional obligation created by contract between the parties. A party who demands performance of the obligation must prove the existence of the obligation. La. C.C. art. 1831. Once the plaintiff meets the initial burden of establishing a prima facie case of the existence of the obligation by a preponderance of the evidence, the burden shifts to the defendant to come forth with sufficient evidence to rebut or cast doubt on the plaintiffs case. Louisiana Safety Association of Timbermen Self Insurers Fund v. Malone Lumber, Inc., 34,646 (La.App. 2d Cir.6/20/01), 793 So.2d 218, writ denied, 2001-2557 (La.12/7/01), 803 So.2d 973.

In the present case, Timbermen established the existence of the workers’ compensation insurance contract and that, according to the audits conducted in 1998, 1999, and 2000, Rufino’s owed an additional amount for insurance premiums. Rufi-no’s then had a duty to rebut Timbermen’s assertions. Based upon the evidence presented, Rufino’s failed in that duty.

Through the testimony of its witnesses, including Mr. Parker and Mr. Brunson, Timbermen established that the amounts claimed were owed by Rufino’s. Mr. Parker set forth the standard procedure for conducting audits. Rufino’s argues in brief that Mr. Parker stated that procedures for conducting an audit required that, if additional information was needed, that it would be requested from the insured. The record shows that Mr. Parker stated that procedures required all documentation to be provided at the time of the audit and that, in some instances, if certificates of insurance for subcontractors were provided later, a credit might be given.

Rufino’s contends that the classification of employees for calculation of premiums depends upon information furnished by the insured. Mr. Parker testified that the type of work that the employee does is examined and a “scopes manual” is used to determine the insurance premium rate to be charged. The record also shows that Mrs. Saavedra failed to timely respond to requests by Mr. Brunson to provide all pertinent information at the time of the audit.

InRufino’s contends that there was no contradiction at trial of Mrs. Saavedra’s testimony that the usual procedure regarding uninsured subcontractors was that 60 percent of the total amount paid was used as the cost of labor to calculate insurance premiums. We note that Mr. Parker testified that usually there was a 50 percent cap on the amounts attributed to labor paid to uninsured subcontractors. However, the record shows that Mrs. Saavedra failed to timely provide sufficient information regarding the breakdown of labor and materials paid to uninsured subcontractors or the categories of workers. Therefore, not only was the 50 percent cap not applied, but Mr. Brunson assigned all the workers to one category and the premium was calculated on that basis. According to his testimony, due to the lack of information provided, this was his only choice to complete the audit.

Rufino’s claims that Mr. Brunson indicated at trial that the information regarding work done by subcontractors on the OPSB projects may have been sufficient to exclude those amounts from the insurance calculation. The record shows that this information was not timely furnished and that Mr. Brunson indicated that the documentation did not show how much of the labor was attributable to OPSB projects and how much was done by the subcontractors on other jobs that would have been covered by Timbermen.

Rufino’s argues in brief that Mrs. Saave-dra’s revisions to the audit were not questioned at trial. On the contrary, the record shows that Mr. Brunson testified that the information furnished was fragmentary and did |1?not support Rufino’s claims. Contrary to the arguments made by Rufi-no’s, there is a conflict between Mrs. Saavedra’s testimony and that of Mr. Brunson and the others who testified on behalf of Timbermen. The decision of this case turns on a credibility determination made by the trial court.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, supra, Louisiana Safety Association of Timbermen Self Insurers Fund v. Malone Lumber, Inc., supra.

When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or l ^objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, supra; Humphrey v. Balsamo, 40,200 (La.App. 2d Cir.11/8/05), 914 So.2d 1217. The record shows that the trial court was not manifestly erroneous or clearly wrong in determining that Mr. Brunson was a credible witness.

Based upon the testimony and the evidence in the record, Timbermen established the amount of the workers’ compensation insurance premiums owed by Rufino’s. Even though Rufino’s disputes these figures, the company failed to adequately document its claim for credit. Mr. Brunson testified that the documents submitted by Mrs. Saavedra were fragmentary. The trial court also found that the documents submitted at trial to be insufficient to establish Mrs. Saavedra’s claim for credit. Our examination of the documentary evidence shows that the trial court was correct in this finding. The record shows that Mrs. Saavedra had notice of the audits, and yet failed to cooperate by providing the needed information at the time of the audit. Mr. Brunson testified that he tried to meet with her on three occasions and she never appeared. The comments on the audits reflect the difficulty caused by Mrs. Saavedra’s failure to cooperate with the audit | uprocess. Based upon the record before us, the trial court did not err in accepting Timber-men’s audits to be accurate, based on the information the plaintiff had to work with.

As noted by Timbermen, La. R.S. 23:1196 addresses the duty of an employer to furnish necessary information to facilitate the yearly audit in connection with workers’ compensation insurance premiums. Amendments to that statute, spelling out the duties of the employer, became effective August 15, 1999. That statute now provides in pertinent part:

A. Each fund established pursuant to R.S. 23:1195 shall:
(2)(a) Conduct a premium audit annually and within four months from the termination of any employer’s participation in the fund, to be conducted by an independent payroll audit firm approved by the department, or as otherwise may be approved by the commissioner.
(b) If requested, each employer shall submit a copy of state and federal reports of employee income on each employee at the end of each quarter to the fund.
(c)(i) Employers shall make available to the auditor all records necessary for the payroll verification audit, including, but not limited to, payroll records, accounting records, certificates of insurance maintained by subcontractors, and duties of employees; and permit the auditor to make a physical inspection of the employer’s operation.
(ii) If the employer fails to make such records available on the date and time of an audit requested and scheduled by the auditor, and the auditor cannot complete the audit as a result, the fund may charge the employer to pay five hundred dollars to the fund to defray the costs of the audit together with reasonable attorney fees incurred by the fund in collection thereof.
|15(iii) If, within thirty days from written request of the auditor, the employer fails to provide reasonable access to such records or refuses to allow a physical inspection of the employer’s operation, the fund may charge the employer to pay a premium of up to two times the most recent estimated annual premium together with reasonable attorney fees incurred by the fund in obtaining compliance with the required audit or in collecting such premium.
(e) A fund may institute a civil action to enforce the obligations of the employer and collect the amount specified in Sub-paragraphs (b), (c), and (d) of this Paragraph. The fund shall be entitled to proceed by use of summary proceedings. The penalties provided for herein shall not be assessed unless the potential penalty and the method of imposition are disclosed in the written request to the employer required by this Subpara-graph.

This statute appears to be designed to provide for specific premium audit requirements such as payroll reporting, payroll verification auditing, penalties for failure to cooperate with required audits, and penalties for intentional misrepresentations, and allows for the institution of a civil action to enforce obligations of the employer. The amendments to the statute were not in effect until August 1999. Although both parties have cited this statute in support of their positions, it was not in effect throughout the entire period in dispute. Further, Timbermen does not seek to enforce the penalty provisions of the statute; the plaintiff only seeks payment of the premiums due for 1998, 1999, and 2000.

CLASSIFICATION OF EMPLOYEES

Rufino’s argues that the trial court erred in accepting the classification of the employees’ duties by job trade as assigned by Timbermen. According to the defendant, the usual practice was for the |1fiauditor to request information after reviewing financial records at the accountant’s office. Mrs. Saavedra claimed that, upon request, she would supply information about the classification of workers. The worker classification determines the amount of premium to be assessed to the company. Rufino’s claims that it corrected the audits for the years in question and submitted the corrections to Timbermen. The defendant claims that these revisions were never questioned by Timbermen and should have been applied.

Timbermen claims that it was up to Rufino’s to provide information about the classification of employees’ duties by job trade at the time of the audit and that this was not done. After she received the insurance premium bill, Mrs. Saavedra merely changed the classification of employees without providing any source material to support the change. The plaintiff maintains that the trial court did not err in accepting Mr. Brunson’s classification of employees.

As shown by the record, there is a conflict between the testimony of Mrs. Saave-dra and Mr. Brunson as to what information was submitted by Rufino’s to show that the audit report was not correct. The trial court found that Mr. Brunson was a credible witness and rejected the testimony of Mrs. Saavedra. This finding by the trial court was not manifestly erroneous or clearly wrong. The record shows that Mrs. Saavedra failed to timely submit information to establish the classification of employees. Further, the revised audit submitted to Timbermen did not provide documentation for the changes urged by Rufino’s. The trial court did not err in accepting 117Timbermen’s classifications and rejecting Rufino’s arguments on this issue.

SUBCONTRACTOR RATES

The defendant argues that the trial court erred in including 100 percent of the payment made to uninsured subcontractors in computing the workers’ compensation insurance premium. The insurance contract did not specify how to handle this item in calculating the insurance premium. The defendant claims that under La. C.C. art. 2053, a doubtful provision of a contract must be interpreted in light of the nature of the contract, equity, usage, and conduct of the parties before the litigation.

Rufino’s contends that, regarding subcontractors without their own workers’ compensation insurance, the usual practice between the parties was to include 60 percent of the amount paid to the subcontractor in computing the insurance premium owed to Timbermen by Rufino’s. The company claims that Timbermen incorrectly included 100 percent of the amounts paid under the agreements with subcontractors.

Timbermen argues that it did not refuse to reduce the premium on contractors who supplied materials. However, Rufino’s failed to supply requested documentation regarding the amount of materials supplied by the subcontractors. Rather, Rufi-no’s insisted on a 60/40 split on labor and materials without any documentation. Further, Timbermen asserts that Rufino’s failed to submit certificates of insurance for subcontractors who were insured.

The record shows that Mr. Brunson tried on three occasions to meet with Mrs. Saavedra to complete the audit. In each instance, she failed to |isappear and failed to timely submit her documentation. Further, Mr. Brunson, whose testimony was found credible by the trial court, stated that Mrs. Saavedra never provided documentation to show the amounts paid to subcontractors for labor and materials as she claimed at trial. Because of the lack of information supplied by Rufino’s, all workers were placed in one category and 100 percent of the payroll was used in calculating the insurance premium. In light of Mrs. Saavedra’s failure to provide adequate documentation, both for the audit and for trial, Rufino’s cannot be heard to complain regarding the amounts attributed to subcontractors’ work at the audit.

OPSB WORK

The defendant argues that the trial court erred in including payments to subcontractors covered by certificates of insurance under the OPSB owner-controlled insurance program. As stated above, Rufino’s did some work on OPSB projects in 1999 and 2000. Subcontractors were covered by OPSB workers’ compensation insurance while working on those projects. Rufino’s claims that it submitted certificates of insurance to Timbermen confirming that fact. Rufi-no’s urges that Timbermen erred in including those subcontractors on those jobs in computing the workers’ compensation premium. Rufino’s also points out that the 2000 audit did not include these subcontractors. Rufino’s claims that this was an admission that the payments to subcontractors working on OPSB projects should not have been included in the premium calculation.

119Timbermen urges that the information concerning the certificates of insurance on the OPSB projects was not presented timely. The plaintiff also argues that this is not the same as a subcontractor having its own insurance coverage. Timbermen asserts that it could have still been liable for compensation claims arising on the projects involved. It also argues that, under the documentation provided, there was no way to distinguish when a subcontractor was working on an OPSB project as opposed to other work.

Once again, this was a situation in which Mrs. Saavedra failed to comply with the standard procedures for workers’ compensation insurance premium audits and failed to timely claim coverage by the OPSB for work done by the subcontractors on those jobs. Subcontractors and employees of Rufino’s worked on different jobs and not just those for the OPSB. From the limited documentation submitted, Rufino’s did not clearly show what portion of the amounts paid to the subcontractors was attributable solely to the OPSB projects. Therefore, we find that the trial court did not err in rejecting Rufino’s claim to reduce the workers’ compensation premiums owed to Timbermen.

CONCLUSION

For the reasons stated above, we affirm the decision of the trial court granting the plaintiff, Louisiana Safety Association of Timbermen Self Insurers Fund, recovery against the defendant, Rufino’s Painting and Contractors, Inc., for $31,527.13 in unpaid workers’ compensation insurance premiums, together with ten percent interest and $5,000 in |gnattorney fees, subject to a credit of $5,426.26 already paid by Rufino’s to the plaintiff. Costs in this court are assessed to the defendant.

AFFIRMED.


author: PEATROSS, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Derrell MENDENHALL, Appellant.
    No. 40,986-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2006.

      Louisiana Appellate Project by James E. Beal, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART & PEATROSS, JJ.
   PEATROSS, J.

| defendant, Derrell Mendenhall, pled guilty to attempted distribution of marijuana. He was sentenced to five years at hard labor. For the reasons stated herein, the guilty plea and sentence are vacated and the matter is remanded to the trial court for further proceedings.

FACTS AND BACKGROUND

Before accepting Defendant’s plea to attempted distribution, the trial judge advised Defendant that he had the right to a trial by jury and the right to remain silent and not to incriminate himself. The trial judge then informed Defendant that “[a]t the trial the DA would have to prove the case beyond a reasonable doubt. Your attorney would cross-examine the DA’s witnesses.” The district attorney read the charge to which Defendant pled guilty, stating that Defendant attempted to distribute marijuana to a confidential informant who approached Defendant in his home and asked for $20 “worth of weed.” The trial judge asked Defendant’s counsel if he thought that his client understood “his rights” and freely waived them. Counsel responded affirmatively, and the guilty plea was entered.

DISCUSSION

Assignment No. 1: The trial court failed to fully advise the defendant of his right to confront and cross-examine his accusers

Defendant argues that the guilty plea should be vacated because he was never fully advised of his right of confrontation as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He also claims that he was never informed of the identity of the confidential informant to whom Defendant sold marijuana.

12Right of Confrontation

In order for a guilty plea to be valid, it is necessary for the accused to make a knowing and intelligent waiver of three constitutionally guaranteed fundar mental rights. Those rights are the privilege against compulsory self-incrimination, the right to trial by jury and the right to confront one’s accusers. Boykin, supra; State v. Jones, 28,929 (La.App.2d Cir.4/2/97), 691 So.2d 858. The third right in the trilogy is guaranteed by the Confrontation Clause of the Sixth Amendment to the United States Constitution which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”

In addition, La.C.Cr.P. art. 556.1(A)(3) provides, in pertinent part, as follows:

A. In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and. informing him of, and determining that he understands, all of the following:
* * *
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself. (Emphasis added.)

A guilty plea will not be considered free and voluntary unless, at the very least, the court advises the defendant of the triad of rights as enunciated in Boykin, supra, and Louisiana law. Indeed, an express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992). Furthermore, the trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980); Morrison, supra.

As previously stated, the Sixth Amendment provides that, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Here, during the colloquy, the trial judge advised Defendant that he had the right to a trial by jury and the right to remain silent and not to incriminate himself and that, “[a]t the trial the DA would have to prove the case beyond a reasonable doubt. Your attorney would cross-examine the DA’s witnesses.” When the two statements by the trial judge are read together, it is obvious that the trial court was referring to Defendant’s right to cross-examine adversarial witnesses presented by the State. The statement that the State would have to prove the case beyond a reasonable doubt implies that the State would have to present evidence, including witnesses. To find, however, that these statements suffice as an advisement to Defendant of his right to confront his accusers is tenuous. Given the totality of the warning statements given, we find that the trial judge failed to adequately advise Defendant of his right to confrontation. Without a knowing and intelligent waiver of this | constitutionally guaranteed fundamental right, the guilty plea is invalid and must be vacated.

In light of our finding that Defendant’s guilty plea must be vacated and the matter remanded, we pretermit any discussion of his argument concerning discovery of the identity of the confidential informant and his second assignment of error concerning his sentence.

DECREE

Defendant, Derrell Mendenhall, was not adequately advised of his constitutional right of confrontation. The guilty plea entered by him is, therefore, invalid. For this reason, the conviction and sentence of Defendant are hereby vacated and the matter is remanded to the trial court for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS.

BROWN, C.J., dissents with written reasons.

BROWN, Chief Judge,

dissenting.

hThe precise question presented by the defendant in this appeal was that “[TJhere is no indication anywhere in the record that the defendant was made aware of the fact that he was entitled to know the identity of, and cross-examine, the confidential informant, the very person accusing him of the crime for which he was sentenced to five years at hard labor. Therefore, the guilty plea was not knowingly and intelligently made and should be vacated ...”

The majority opinion does not respond to this issue; instead, it speaks only to the discourse or language used by the trial court in taking the guilty plea. Whether a defendant is entitled to the name of the confidential informant is not an issue at a guilty plea. A guilty plea waives all non-jurisdictional defects in the proceedings and precludes review of such defects either by appeal or post-conviction relief. A request for and the denial of the identification of the confidential informant is such a non-jurisdictional defect. In State v. Crosby, 338 So.2d 584 (La.1976), the Louisiana Supreme Court decided for the first time that a defendant could enter a guilty plea and reserve his right to appellate review of alleged non-jurisdictional errors; however, absent a prejudicial error patent on the face of the record, a defendant who pleads guilty waives his right to obtain appellate review if he does not object at the time of the alleged erroneous ruling and conditions the guilty plea on a right to appeal the ruling. In the instant case, no request for the identity of the informant was made. Thus, no objection or reservation was perfected.

12Further, I disagree that the dialogue between the trial court and defendant was not sufficient under Boykin. One would have thought that after so much time and litigation that the requirements for a valid guilty plea would be carried out as a matter of second nature. As reflected by this appeal, this is apparently not the case. Boykin makes clear that a plea of guilty cannot stand unless the record demonstrates that it was freely and intelligently entered. A silent record will not suffice. Rather, the trial court must actively participate in canvassing the matter with the accused. To insure such a record, Boykin requires the trial court to expressly enumerate three rights that must be waived by the accused prior to accepting a guilty plea. As spelled out by Boykin, these rights are to a jury trial, against self-incrimination, and to confront your accusers. The rule does not call for a recitation of a formula by rote or the spelling out of every detail by the trial court.

The majority has found that the trial court did not sufficiently inform defendant of the right to confront his accusers. I disagree. Black’s Law Dictionary provides that the word “confrontation” in criminal law “does not mean merely that the witnesses are to be made visible to the accused, but imports the constitutional privilege to cross-examine them.” The word “confrontation” is alone sufficient to convey both sight of and confrontation of the witness.

In this case, the trial court said that “the DA would have to prove the case beyond a reasonable doubt (and) your attorney would cross-examine the DA’s witnesses.” As the word “confrontation” means both seeing the |switness and questioning on cross-examination, so does “cross-examination” include the necessity of looking at the witness. This is simply common sense. Thus, I disagree with the majority’s statement that the trial court, although noting the right to cross-examine, failed to advise of the right to see the witnesses. Such a pedantic and limited interpretation of the word “cross-examination” is unwarranted.

I respectfully dissent.

      . In the case sub judice, the minutes state that Defendant was advised of his right to "confront accusers," but, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983).

      . We note that, in a factually different case, the Louisiana Supreme Court has explained that the Sixth Amendment provides “two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.” State v. Welch, 99-1283 (La.4/11/00), 760 So.2d 317. While Welch involved a defendant’s right to physically confront a witness during trial, rather than an advisement during a guilty plea colloquy, this explanation of the Sixth Amendment right has been cited by this court in a case discussing the sufficiency of a trial judge's Boykinization of a defendant during the taking of a guilty plea. See State v. Anderson, 34,491 (La.App.2d Cir.4/4/01), 784 So.2d 749, writs denied, 01-1431 (La.4/12/02), 812 So.2d 666 and 01-2429 (La.5/24/02), 816 So.2d 303.


author: PICKETT, Judge. SAUNDERS, J.,

text:
    ANGELLE CONCRETE, INC. v. Jerry SANDIFER.
    No. 2006-38.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2006.

      Earl G. Pitre, Pitre, Halley & Sikich, Lake Charles, LA, for Appellee, Angelle Concrete, Inc.
    Thomas E. Townsley, Lake Charles, LA, for Appellant, Jerry Sandifer.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

|/The claimant, Jerry Sandifer, appeals a judgment of a Workers’ Compensation Judge (WCJ) finding that the claimant’s employer, Angelle Concrete, Inc. (Angelle), was justified in terminating his indemnity benefits. On appeal, the claimant seeks reinstatement of indemnity and medical benefits, plus penalties and attorney’s fees for the defendant’s arbitrary and capricious handling of his claim. We affirm in part and reverse in part the judgment of the WCJ and remand the case with instructions.

FACTS

The parties stipulated that the claimant was injured in the course and scope of his employment as a truck driver on October 29, 2003. It is also undisputed that the claimant owned and operated his own private business, a detail shop, Jerry’s Soft Touch, which he opened in September 2003.

As a result of the October 29, 2003 accident, Mr. Sandifer suffered an injury to his right shoulder which was diagnosed as a rotator cuff tear. He was initially seen by Dr. Nathan Cohen, the company’s choice of physicians. When Dr. Cohen recommended surgery, Mr. Sandifer decided to consult Dr. Dale Bernauer, who had operated on him previously. Dr. Ber-nauer concurred with Dr. Cohen, i.e., that surgery was indicated. Neither doctor felt that the claimant could continue his duties as a cement truck driver and, Mr. Sander was placed on temporary total disability (TTD) status. In November and early December 2003, the claimant was placed under video surveillance on a number of occasions. The tapes revealed the claimant working at his detail shop and at a friend’s business. On December 5, 2003, the claimant executed a LDOL-WC-1025 form. The form informed the claimant that “[i]t is unlawful for you to work and receive workers’ compensation benefits, except for | ¡.supplemental earnings benefits.” The form goes on to define supplemental earnings benefits and warns the employee that “you must notify your employer or insurer of the earning of any wages ...” The form also warns the claimant that failure to comply with its directives can result in a fine and/or imprisonment and the loss of workers’ compensation benefits.

After reviewing the surveillance tapes, the claimant’s medical records, and the 1025, the adjuster for Gray Insurance Company, Angelle’s workers’ compensation carrier, filed a form 1008, Disputed Claim for Compensation, and terminated Mr. Sandifer’s benefits effective December 21, 2003. The case came on for a hearing on May 5, 2005, and judgment was rendered in favor of the defendants on September 6, 2005. This appeal followed.

LAW AND DISCUSSION

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court discussed the standard of review in workers’ compensation cases:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105.

| aThe record establishes that the claimant suffered an on the job injury — a tear to the rotator cuff of his right shoulder. Both the company physician, Dr. Cohen and the claimant’s own physician, Dr. Bernauer agreed in that diagnosis and both recommended surgery. Yet, the defendant failed to authorize the surgery, claiming it wanted another opinion. We find the defendant’s refusal to authorize the surgery arbitrary and capricious ■ and award the claimant $2,000.00 in penalties and $5,000.00 in attorney’s fees for this unwarranted action.

We next address the issue of indemnity benefits. In her judgment, the WCJ found “the defendant was justified in stopping claimant’s workers’ compensation benefits based on claimant’s representation that he could not work, yet he was working and earning money in his auto detail shop business. At the time claimant signed the Form 1025, he was earning money in his auto detail shop.”

At the May 5, 2005 hearing, the claimant testified as follows:

Q. Did you read the form before you signed it?
A. Yes, sir, I did.
Q. Did you talk with your lawyer before you signed it?
A. Yes, sir, I did.
Q. Did you know what you were signing when you signed it?
A. No, sir, not really. I thought it was just a — make sure my workmen’s comp keep going; that’s what I thought it was for.
Q. But you called your lawyer to get advice?
A. Yes, sir, I did.
Q. And you got the advice?
A. And my lawyer’s advice was to sign it and give it back, and it was told to me that everybody in the company had to sign one of those.
|4Q. And you knew this form is a- — it’s unlawful for you to work and receive workers’ compensation disability benefits, right?
A. Yes, it said that.
Q. Okay. And you knew you that when you signed it?
A. I knew what it—
Q. And you knew that when you signed it?
A. My understanding when I signed that, it was that they wouldn’t cut my workmen’s comp out; that was my understanding.
Q. But you read it?
A. Yes, I read it.
Q. You read it? So, you read and you signed it after you talked to your lawyer?
A. That’s right, I did.
Q. And you knew — you knew what you were signing; you knew you were signing this form?
A. I talked to my lawyer. My lawyer told me to sign it.
Q. How much money did you make while you were working at your Jerry’s Soft Touch?
A. Not enough, that’s for sure. I went in the hole.
Q. You would charge up to $65 to do a large truck?
A. A full detail, yes, sir.
Q. And 50 to $55 to detail a car?
A. Do what?
Q. 50 to $55 to detail a car?
A. Yes, sir.
Q. And a regular wash was like $20?
A. Yes, sir.
| kQ. And you did a lot of those during the time after October 29 of '03, right?
A. Not necessarily, sir, because, like I say, I still took a loss and I’m still taking a loss as of now.
Q. But you did get money in—
A. Yes, sir.
Q. —while you were working?
A. Why I was working?
Q. While you were working at Jerry’s Soft Touch, you made money; you were the owner.
A. I guess you would say that, yes, sir.

In sum, the claimant’s own testimony supports a finding that the defendant was justified in stopping the claimant’s TTD benefits. However, our inquiry does not stop there. We note that the WCJ found the defendant was justified in stopping claimant’s workers’ compensation benefits based on claimant’s representation that he could not work, his signing of the Form 1025, and the fact that at the time he signed the form he was working in his auto detail shop business. The foregoing provides a basis for a finding that the defendant’s action in terminating the claimant’s TTD was not arbitrary, capricious and without probable cause and that the actions were reasonably controverted. However, we note that the WCJ never made a specific finding that the claimant’s actions had risen to the level of fraud under La.R.S. 23:1208. It is well settled that:

“After establishing that a claimant has made a false statement or misrepresentation ... the [WCJ] must make a factual determination as to whether, based on the record, the statement was willfully made specifically to obtain benefits, and thus defraud the workers’ compensation system.” Harris v. Christus St. Patrick Hosp., 02-1502, p. 6 (La.App. 3 Cir. 10/22/03), 857 So.2d 1278, 1283, writ denied, 03-3193 (La.2/13/04), 867 So.2d 697 (quoting Marler v. New Orleans [(Area Council, Boy Scouts of Am., 01-1167, pp. 7-8 (La.App. 5 Cir. 3/13/02), 815 So.2d 131, 135) (second alteration in original).

Phillips v. Diocese of Lafayette, 03-1241, p. 7 (La.App. 3 Cir. 3/24/04), 869 So.2d 313, 317-318. Because La.R.S. 23:1208 is penal in nature, it must be strictly construed. Wallace v. Lavergne Transp., 02-123 (La.App. 3 Cir. 6/12/02), 819 So.2d 508, writ denied, 02-1896 (La.10/25/02), 827 So.2d 1176.

Although not on all fours with this case, we find the Wallace case has some striking similarities:

The claimant, James Wallace, was injured on May 12, 1998 in a car accident while working as a truck driver for the defendant, Lavergne Trucking.... As a result of the accident, the claimant suffered a back injury. The claimant was subsequently placed on workers’ compensation temporary total disability benefits. On January 11, 1999, Dr. Stephen Goldware and Dr. Louis Blanda performed back surgery on the claimant, which included a discectomy and a fusion.
In October of 1999, the claimant began selling fresh shrimp and crabs out of his van on a roadside in Nuba, Louisiana. ... According to the medical records and the claimant’s testimony, the claimant expressed a desire to increase his activity level and considered selling seafood as a means of getting out of the house and being productive.
On December 6, 1999, the defendant ceased payment of workers’ compensation benefits to the claimant alleging that the claimant engaged in deceptive acts that constituted fraud pursuant to La.R.S. 23:1208.
The defendant’s main contention is that the claimant signed each disability check and the back of each check contained a printed statement which read: “FRAUD WARNING by endorsing this check I certify that I have not worked or earned any wages during the period covered by this check.” Thus, the defendant argues that by signing the checks, which contained the fraud warning, and working, selling the seafood, the claimant violated La.R.S. 23:1208 and should lose all workers’ compensation benefits.
Nevertheless, the claimant explains that he never hid his intention to sell the seafood. In fact, the claimant expressed the desire to sell the seafood to his physical therapist and explained that he wanted to have “something to do.” The plaintiff had advertising flyers printed and soldjjthe seafood at a busy intersection in Nuba, Louisiana. The claimant testified that he sold the seafood approximately for a period of six to seven weeks and that he stopped selling the seafood before his weekly benefits were terminated because he was not making any money. In his brief, the claimant points out that he was advised by his physicians not to do any heavy lifting, but was encouraged to become more active. The claimant and his wife both testified that selling the seafood to the public was not about “cheating anybody,” but about giving the claimant a method to reenter society.
In his oral reasons for judgment, the workers’ compensation judge explained:
Well, I’d just like to note for the record in this matter that it seems to be in this case where there’s an employee injured there’s no question about his injury, his accident, no question about the seriousness of his injury. The employee on his own is very initiative, very industrious, makes an attempt to return to work, however the payor of benefits, rather than complying with its obligations to provide vocational assistance to assist the gentleman in returning to work or retraining him properly in entering a pursuit of shrimp sales commercially, ... instead has him surveilled and then terminates his benefits before they’re even aware that he has made any actual earnings from the activities they have observed.
We, too, agree that the defendant did not produce adequate evidence to meet the requirements of La.R.S. 23:1208, namely that the claimant was willfully making false statements. The claimant disclosed his intentions to his physical therapist and did not appear to operate in a cloak of secrecy. Additionally, from our review of the record, it does not appear that the claimant attempted to lie about his activity or was given the opportunity to explain his actions prior to the termination of his benefits.... While this case may be better suited for supplemental earnings benefits, which is a route that the defendant chose not to pursue, this specific case does not rise to the level of willful misrepresentation as prescribed in La.R.S. 23:1208.

Wallace, 819 So.2d at 509-13.

In the case sub judice, the defendant knew that the claimant owned and ran an automotive detail business. We note that the video surveillance on the claimant was Isbegun well before he was asked to execute the 1025 (the wording on the checks in Wallace is equivalent to the wording on the 1025 in this case). Thus, the defendant knew the claimant owned a business, knew he was “working” at the business, but, nonetheless, never endeavored to ascertain if Mr. Sandifer was actually making any money from that business (his tax records show he lost money in the business). We also note that there is nothing in the claimant’s medical records which would preclude him from light duty employment. Additionally, it was established that although the defendant expressed in-, terest in having Mr. Sandifer return to work in a light duty status, a light duty position was not available at the time (Dr. Cohn restricted the claimant to sedentary work and Dr. Bernauer certified him to light duty with the proviso “cannot use r[ight] arm”). Finally, we take notice of the fact that Dr. Bernauer reviewed the video surveillance and concluded that nothing that Mr. Sandifer did during the surveillance was inconsistent with his injury or against medical advice.

Considering the spirit of the workers’ compensation laws, the actions of this court in Wallace, and the facts in this case, we find it was legal error for the WCJ to completely terminate Mr. Sandifer’s worker’s compensation benefits. While Mr. Sandifer’s actions clearly show that he is not totally disabled, we find he is nonetheless still qualified for SEB.

Accordingly, for the reasons stated above, the judgment of the WCJ is affirmed in that we find that the claimant’s TTD benefits were properly terminated. We reverse the termination of the claimant’s medical benefits. We remand the case for proper determination of SEB benefits due Mr. Sandifer. Additionally, we award Mr. Sandifer $2,000.00 in penalties and $5,000.000 in attorney’s fees for the defendant’s | afailure to timely authorize his rotator cuff repair and order that approval for the surgery be granted posthaste. All costs of this appeal and at the trial level are assessed against the defendant’s workers’ compensation carrier.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

SAUNDERS, J., concurs in part, dissents in part and assigns written reasons.

SAUNDERS, J.,

concurs in part, dissents in part, and assigns written reasons.

b This is a workers’ compensation case in which Claimant, Mr. Jerry Sandifer, suffered a rotator cuff tear during the course and scope of his employment as a truck driver with Angelle Concrete, Inc. Under La.R.S. 23:1221(1), temporary total benefits are to paid only when an employee’s work-related injury prevents him from engaging in any self-employment or occupation for wages. In my view, Mr. Sandi-fer’s temporary total benefits should not have been reduced to supplemental earnings benefits, as the record contains un-contradicted testimony that he was not engaged in any employment or self-occupation for wages.

As a result of his injury, Mr. Sandifer was prevented from returning to his job as a cement truck driver for Angelle Concrete, Inc. In addition to working as a truck driver, Mr. Sandifer owned and operated Jerry’s Soft Touch, a detail shop, which he continued to operate after his accident. Some time after the accident, he was placed under video surveillance, and was taped cleaning and detailing cars at the shop. Although the video footage does not show Mr. Sandifer doing anything inconsistent with his injury or against medical advice, it proves that he was, in fact, able to perform some sort of labor. However, in order to reduce one’s temporary total disability benefits to supplemental earnings benefits, the employment must be for 12wages. Mr. Sandfier testified at trial on March 5, 2003 that although he continued to operate the detail shop, and it continued to bring in revenue after the date of the accident, it was not enough, and that he “went in the hole.” The money paid by the customers for services performed on their vehicles did not constitute “wages” paid to Mr. Sandifer. Instead, this money was capital that was paid back into the business, Jerry’s Soft Touch, in order to run it. Mr. Sandifer testified that the money he earned from the operation of the detail shop was less than the amount he had to expend to run it. Therefore, he received no net profit and no “wages” from the operation of the detail shop. In fact, he experienced a loss. Therefore, although Mr. Sandifer may have been engaged in some labor at the shop, it was clearly not employment or self-occupation for wages, as he earned no money from said labor.

Defendant argues that Mr. Sandifer “made money” by working at the detail shop. However, it has presented no evidence to support its position. Moreover, it has not proven that Mr. Sandifer has the capacity to engage in any self-employment or occupation for wages. Defendant has clearly not carried its burden of proof. Therefore, I contend that, as a matter of law, the termination of Mr. Sandifer’s temporary total benefits was improper.

In as much as the majority has concluded that Mr. Sandifer was not prevented from engaging in any self-employment or occupation for wages, I do agree with their conclusion that he is eligible to receive supplemental earnings benefits. La.R.S. 23:1221(3); Smith v. Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129. An employee who is injured during the course and scope of his employment may recover supplemental earnings benefits if he can show, by a preponderance of the evidence, that as a result of the injury sustained, he is prevented from earning at least 90% of his pre-accident wages. La.R.S. 23:1221(3). Clearly, Mr. Sandifer is entitled to [¡¡receive, at least, supplemental earnings benefits, as it has not been shown that he was able to earn 90% of his pre-accident wages. He was not able to return to his primary job as a truck driver due to the severity of his injury. Additionally, as discussed earlier, he made no net profit from the operation of his detail business.

Supplemental earnings benefits are based on the difference between the average weekly wage of employee at the time of the accident and the proven earning capacity after the injury. Pinkins v. Cardinal Wholesale Supply, 619 So.2d 52 (La.1993). Accordingly, supplemental earnings benefits should be determined based on the difference between the average weekly rate Mr. Sandifer earned before the accident and zero, as the record indicates there was no net profit from the operation of the detail shop, and Defendant has not proven Mr. Sandifer’s earning capacity otherwise. I see no reason to remand this case to the trial court for calculation, as the amount of supplemental earnings benefits based on zero would be equal to the amount of temporary total benefits he was receiving before defendant terminated the benefits. Therefore, I dissent insofar as the majority opinion holds that Defendant properly discontinued temporary total benefits and insofar as the majority finds it necessary to remand the case to determine the rate of supplemental earnings benefits payments. In all other respects, I concur with the majority opinion.


author: WILLIAMS, Judge. CARAWAY, J.,

text:
    Cosmas Damien PREST, Plaintiff-Appellee v. PARISH OF CADDO, a Political Subdivision of the State of Louisiana Acting in and through the Caddo Parish Commission, Defendant-Appellee Lennis Elston, Intervenor-Appellant.
    No. 41,039-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 2, 2006.

      Charrier & Charrier, by John 0. Charrier, Jr., Alexandria, Alliance Defense Fund, by J. Michael Johnson, Cook, Yancey, King & Galloway, by Lee H. Ayres, Shreveport, for Appellant, Lennis Elston.
    Tutt, Stroud & Bordelon, LLC, by Ansel M. Stroud, III, Shreveport, for Appellee, Cosmas Damien Prest.
    Alex J. Washington, Charles C. Grubb, Shreveport, for Appellee, Parish of Caddo.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   WILLIAMS, Judge.

|-i The intervenor, Lennis Elston, appeals a judgment in favor of the plaintiff, Cos-mas Prest. The trial court reversed the decision of the Caddo Parish Commission (“Commission”), to deny plaintiff a special exception use. For the following reasons, we reverse and render.

FACTS

Cosmas Prest owns a parcel of land located on Louisiana Highway 1 near the Port of Shreveport in Caddo Parish. In 2003, Prest was contacted by Robert Horn, a developer of truck-stop casino businesses, regarding the purchase of the property. Prest and Horn executed a contract for the sale of the property contingent upon Prest obtaining appropriate zoning and special use exceptions. Prest filed an application with the Metropolitan Shreveport Zoning Board of Appeals (“ZBA”) seeking a special exception use pursuant to Caddo Parish Ordinance 51-1126, which provides that any use involving “the sale or dispensing of beverages of high or low alcoholic content ... is a special exception use requiring the approval” of the ZBA and subject to such terms and conditions as the ZBA may specify.

After a public hearing, by a 4-3 vote, the ZBA granted Prest a special exception use permitting a truck-stop with gaming and the sale of alcoholic beverages on the property. An appeal of the ZBA decision was filed with the Commission on behalf of community residents by Reece Cox and Dennis Sims. During the public hearing, the Commission heard testimony from a number of individuals, including Lennis Elston, regarding the negative impact that the proposed truck-stop casino would have on the safety, morals and long-term economic welfare of the community and the ^surrounding property values. Several supporters of the special exception also spoke. The Commission voted 7-5 to reverse the decision of the ZBA, thereby denying Prest a special exception use to offer video poker and sell alcohol on the premises. However, the Commission subsequently voted to approve re-zoning of the property to 1-1 Light Industry District, thereby allowing the development of a truck-stop on the property without gaming or alcohol.

In July 2004, the plaintiff, Cosmas Prest, filed a petition in district court alleging that the Commission’s decision was arbitrary and capricious and that Caddo Parish Ordinance Section 51-49 was unconstitutional. At trial, Prest presented the testimony of four witnesses. Charles Kirkland, director of the Metropolitan Planning Commission, described the ZBA’s procedure for evaluating requests for special use exceptions. Gary Joiner, who was accepted as an expert in history and demographics, opined that the proposed truck-stop would not have an impact on quality of life issues and would be compatible with the existing land use in the surrounding area. Major Fant, a lieutenant of the Caddo Parish Sheriffs Office, testified that the Sheriff had not experienced any problems with another truck-stop casino facility owned by Horn located near Oil City. Robert Horn, the owner of other truck-stops in northwest Louisiana, testified about the proposed facility. The Commission called Prest, who testified about the history of the property. After the close of testimony, the trial judge viewed the site of the proposed truck-stop.

In its oral reasons, the trial court found that the evidence at trial | sshowed the lack of any legitimate public health, safety or welfare issues to support the Commission’s action. The court concluded that the Commission acted in an arbitrary and capricious manner in overturning the decision of the ZBA. The court rendered judgment in favor of the plaintiff, vacating the Commission’s decision and reinstating the ZBA’s decision to approve the special exception use.

The Commission chose not to appeal the judgment. However, nine citizens and a homeowners’ association filed a motion to appeal. After a hearing, the trial court found that a contiguous property owner, Lennis Elston, possessed standing to appeal the judgment.

DISCUSSION

Elston contends the trial court erred in reversing the decision of the Commission as arbitrary and capricious. Elston argues that based on the evidence presented, the Commission’s decision was reasonable and was substantially related to the public health and safety of the parish.

Zoning is a legislative function, the authority for which flows from the police power of governmental bodies. King v. Caddo Parish Commission, 97-1873 (La.10/20/98), 719 So.2d 410. Courts will not interfere with this legislative prerogative unless the zoning decision is palpably erroneous and without any substantial relation to the public health, safety or general welfare. King, supra. Zoning ordinances are presumed valid. Papa v. City of Shreveport, 27,045 (La.App.2d Cir.9/29/95), 661 So.2d 1100, writ denied, 95-2544 (La.1/5/96), 666 So.2d 295.

A challenge to a zoning decision is a de novo proceeding in which the|4issue is whether the result of the legislation is arbitrary and capricious. Palermo Land Co., Inc. v. Planning Commission of Calcasieu Parish, 561 So.2d 482 (La.1990). The terms “arbitrary and capricious,” when used in this type of situation, mean wilful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case. On the other hand, when there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though one may believe that an erroneous conclusion has been reached. King, supra; Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659 (La.1974).

The test of whether a zoning board’s action is arbitrary or capricious is whether the action is reasonable under the circumstances. King, supra; Papa, supra. A reviewing court does not consider whether the district court manifestly erred in its findings, but whether the zoning board acted arbitrarily, capriciously or with any calculated or prejudicial lack of discretion. King, supra; Papa, supra. The property owner has the burden to establish by a preponderance of evidence that the decision by the Commission to deny the special exception has no substantial relationship to public health, safety, morals or general welfare of the municipality. King, supra. Whenever the propriety of a zoning decision is debatable, it will be upheld. Palermo, supra; Papa, supra.

In the present case, Prest contends the above-stated standard of review for the Commission’s zoning decisions is not applicable when a party other than the Commission appeals. Citing Mike Marcello, Inc. v. Louisiana Gaming Control Bd., 04-0488 (La.App. 1st Cir.5/6/05), 903 So.2d 545, Prest points out that an interve-nor takes the proceedings as she finds them and cannot urge matters that enlarge or change the issues presented. However, Prest has not shown that Elston’s appeal has changed the relevant issue, which is whether the record reflects a rational basis for the Commission’s zoning decision. Thus, the cases cited do not support Prest’s contention that the standard of appellate review for decisions of the Commission must change because an appeal is filed by an intervenor rather than by the Commission itself.

In determining the reasonableness of the Commission’s decision, we must review the opinions and concerns raised at the public hearing, as well as the testimony presented at trial. Expressions of opinion made by citizens to a legislative body serve as a manner by which the legislative body learns the will of the people and determines what may benefit the public good. King, supra; Four States Realty Co., supra.

Mike Johnson, an attorney representing a homeowners’ association, stated that problems involving video poker at truck stops had been documented by national studies showing a relationship between gambling and the crime rate. Johnson expressed his belief that alcohol sales were not compatible with trucking. In addition, Johnson reported that half of the district attorneys in Louisiana had identified gambling as a factor that contributed to the increased crime rates in their jurisdictions.

Reverend Dennis Sims, of Ellerbe Road Baptist Church, stated that the sale of alcohol to truck drivers who then entered the state highway Rwould reduce public safety, particularly in the area of the Port of Shreveport-Bossier. Reverend Sims said that the exception for gaming and alcohol should be denied to protect the moral climate of the community and that such a denial would not prevent the operation of a gas station at the site. Reverend Sims said denial of the special exception would serve the long-term economic interests of the parish and pointed out that more than 1,200 residents had signed a petition opposing the proposed truck-stop casino.

Lennis Elston stated that her family owned approximately 425 acres of land adjacent to the proposed truck-stop site. Elston told the Commission that video poker and alcohol sales would be inconsistent with her family’s plan to build a residential development with a marina on their adjacent land.

Marty Stroud, an attorney representing Prest, stated that the project would not be in a neighborhood, that the facility would provide a needed service to truckers and provide increased tax revenue to the parish. Other supporters said that the truck-stop developer, Robert Horn, was a good individual whose other truck-stop casinos did not cause any problems.

After hearing the witnesses, Commissioner Brown moved that the Commission grant the appeal and reverse the ZBA’s decision to approve the special exception use for gaming and on-site alcohol consumption. Brown stated that the exception should be denied for three reasons, community opposition, quality of life in the area and public safety concerns. Brown pointed out that Horn’s character was not the issue, since zoning attached to the property.

Commissioner Webb stated that although there was no collection of |7residences within one mile of the truck-stop site at the present time, the southeast corridor at issue was the fastest growing area of the parish and he predicted that residential subdivisions would be built in the area within five years. Webb pointed out that portions of the property near the proposed truck-stop remained zoned for residence/agriculture uses and that gambling caused social problems that were often overlooked.

Commissioner Gillen stated that gambling and on-site alcohol sales were not necessary to operate a viable truck-stop serving the needs of truckers. Following the statements by the commissioners, they voted 7-5 to deny the special exception use.

As previously stated, at trial Prest attempted to refute the concerns raised at the public hearing with witness testimony. Gary Joiner testified that the nearest church was less than two miles from the site, that no organized housing units were closer than one mile and he opined that residential development would not be the most suitable use for the area because of drainage concerns. However, Joiner acknowledged that at the time of trial, a residential subdivision was under construction less than one mile from the proposed truck-stop casino.

Lieutenant Fant testified about patrol calls at another truck-stop casino owned by Horn located in north Caddo Parish. Fant stated that the majority of complaints at that site involved theft, but he was not asked to evaluate what impact operation of the proposed truck-stop would have on the rate of crime or traffic accidents in south Shreveport.

Robert Horn, who would own and operate the planned truck-stop Leasing, testified that the facility would have a 24-hour restaurant with alcohol consumption and video poker, a convenience store selling packaged liquor and a seven-acre parking lot. Horn acknowledged that he would not operate a truck-stop at the site without video poker and alcohol sales.

In his appellate brief, Prest asserts that the testimony presented at trial to refute the concerns raised at the public hearing was a sufficient basis for the trial court to reverse the decision of the Commission. This assertion is not supported by the applicable law. Prest’s burden was not simply to rebut the concerns expressed by residents and commissioners, but to demonstrate that the Commission’s decision to deny the special exception did not have any substantial relationship to the public health, safety and welfare.

After reviewing the entire record, we conclude that the Commission acted after considering the costs and benefits to the public that would result from approval of the special exception use, including the safety and health implications of increased gambling and alcohol consumption. In addition, the comments of commissioners who voted to deny the exception reflected a decision that gambling and alcohol sales would not be compatible with the expected need for future residential development in the area surrounding the proposed facility. The testimony of Joiner demonstrated that this was a reasonable consideration since a new residential subdivision was being built in close proximity to the site.

Thus, Prest failed to satisfy his burden of proving by a preponderance of evidence that the Commission’s decision lacked a substantial relationship to public health, safety, morals or the general welfare of the community. 13ConsequentIy, we cannot say that the Commission’s decision to deny the application for a special exception use was arbitrary or' capricious under the circumstances of this case. Accordingly, we shall reverse the trial court’s judgment.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is reversed and the Cad-do Parish Commission’s decision denying the special exception use is hereby reinstated. Costs of this appeal are assessed to the appellee, Cosmas Prest.

REVERSED AND RENDERED.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

hi file this concurrence to address an issue of procedure brought into focus by the unusual posture of this appeal. I agree with the majority ruling in all respects. The decision of our Supreme Court in King v. Caddo Parish Commission, 97-1873 (La.10/20/98), 719 So.2d 410, mandates this legislative deference by the courts, there being no showing of nonuniform application of the zoning regulation in the denial of this special exception use.

The first appeal in the procedural process of this matter occurred when the applicant, Prest, prevailed before the Zoning Board of Appeals (“ZBA”). Section 51-49 of the Caddo Parish Code of Ordinances is entitled, “Appeals from Decisions of Board of Appeals,” and addresses the notice to which parties to a zoning dispute are entitled. The ZBA decision is appealed to the Caddo Parish Commission for review. Section 51-49 contemplates that the “request/appeal” is filed by the applicant (who lost before the ZBA) or “property owners” or “any person aggrieved.” Notably, written notice of the appeal to the Commission is provided to “all person(s) who publicly addressed the board members at the public hearing before the board of appeals.” Nevertheless, while Section 51-49 further addresses the appeal of the Commission’s ruling to the district court, it does not attempt to lay out a list of parties who may be necessary defendants in that action. It is readily apparent that in a situation where the applicant loses at the ZBA, but is successful at the Commission (after notice to all opponents), the opponents could not simply sue the Commission in district court without l?any notice to the applicant. This was the issue in Lanaux v. City of New Orleans, Bd. of Zoning Adjustments, 489 So.2d 329 (La.App. 4th Cir.1986), where the court determined the applicant was an indispensable party in the appeal to the district court. Lanaux indicates that private parties who prevail with their zoning claims in the stage of the proceedings before appeal to the district court are entitled to at least notice of the district court proceeding and may be indispensable parties to the suit.

Prest’s suit (appeal) at the district court, brought solely against the Commission, failed, in my opinion, to give notice to two persons, Reece Cox and Dennis Sims, who were themselves parties to these proceedings. Cox and Sims had filed the first appeal of the ZBA decision and thus presented the matter to the Commission, seeking reversal of that ruling. Upon this appeal to the Commission, they were not challenged by Prest for lack of standing, procedural capacity, or no right of action, and the merits were decided in their favor. Therefore, Cox and Sims thus became parties in this action. Nevertheless, ultimately, ironically, and erroneously, Cox and Sims were omitted from the district court action altogether, and in their late attempt to intervene, after the district court’s ruling against their interests, they were denied standing for this appeal.

Upon their request for intervention and the right to appeal pursuant to La. C.C.P. art.2086, the district court should have recognized the standing of Cox and Sims as parties, indispensable to the action, and on its own motion, pursuant to La. C.C.P. art. 927(B), noticed their nonjoinder and allowed the reopening of trial for presentation of a defense. This is | ¡¡particularly appropriate because of the virtual lack of defense presented at trial by the Commission. It was also significant for this case because, unlike the legislative/adjudicatory process at the Commission, the trial court received no direct expressions of concern from the community which, according to King, supra, are appropriate and relevant for the measure and adjudication of the “public health” and “general welfare.”

The foregoing procedural flaws need not be the basis of a peremptory exception of nonjoinder by this court. The ruling of the Commission was not arbitrary and capricious, and our reversal on the merits may be rendered.