text:
    Mark MOREHOUSE v. SOUTHERN UNIVERSITY, BATON ROUGE CAMPUS.
    No. 2006 CA 1184.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      J.A. Smith, III, Baton Rouge, Counsel for Plaintiff/Appellant Mark Morehouse.
    Winston DeCuir, Linda Law Clark, Baton Rouge, Counsel for Defendant/Appel-lee Southern University.
    Robert R. Boland, Jr., Baton Rouge, Counsel for Defendant/Appellee State Civil Service Commission.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

LThis appeal by plaintiff, Mark More-house, concerns his termination by defendant, Southern University (Southern), in December 2003. After being terminated, Mr. Morehouse appealed to the Louisiana Civil Service Commission (Commission), which held hearings on the matter in the summer of 2004 that were conducted by a referee. After those hearings, questions arose regarding whether Mr. Morehouse was a permanent employee at the time of his termination and entitled as such to enhanced civil service procedural rights. After a hearing solely on that issue, Mr. Morehouse was found not to be a permanent employee. As such, he was subject to “at-will” termination without further proceedings. Pursuant to Article X, Section 12 of the Louisiana Constitution, Mr. Morehouse has appealed directly to this court. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL STANCE

Mr. Morehouse began work as a police officer at Southern on September 3, 2002. On his first performance review, dated February 16, 2003 he received satisfactory remarks from his supervisors and was recommended for permanent status and a merit increase in pay. The recommendation reached Southern’s human resources office for action. At that point in the process, Mr. Morehouse’s merit increase recommendation was placed into the system, but due to a clerical error, the recommendation for permanent status never reached Frances Smith, the university’s assistant vice president for human resources and appointing authority for all civil service matters within the Southern system.

| ^Without Ms. Smith’s review and directive to process the recommendation, Mr. Morehouse never technically achieved permanent status despite his superior’s recommendation that he be made permanent after six months. Although the usual probation period was one year, it does not appear either that he achieved permanent status in September 2003 after a full year on the job.

On October 8, 2003 the Southern police department notified all officers that “it is mandatory for all officers to work the home football games” and that if “circumstances arise whereby you are unable to work the game, please give us at least 24-hour prior written notice and/or documentation.” Without providing the required written notice, Mr. Morehouse failed to report for work at the university’s October 25, 2003 home game, for which he received a written reprimand from Captain Sandra Knighton. Again without providing the required notice, Mr. Morehouse also failed to work the November 1, 2003 home game. He received another written reprimand from Capt. Knighton that recommended a five-day suspension without pay. That document also advised Mr. Morehouse that his “continuing failure to comply with departmental regulations... may result in termination of [his] employment with this department.”

On November 7, 2003 the university notified all officers that the November 8, 2003 home game had been moved to an earlier start time; shift schedules were adjusted accordingly. Officers normally scheduled for the shift beginning at 3:00 p.m. (including Mr. Morehouse) were to report at 8:00 a.m. Mr. Morehouse reported at 3:00 p.m. This lateness resulted in an immediate administrative suspension and a third written communication, this time from the university police chief Dale Flowers, who wrote that he was recommending immediate termination.

|4Chief Flowers wrote to Ms. Smith shortly thereafter and recommended termination. Mr. Morehouse was advised of his impending termination on December 5, 2003, he was then formally terminated in a December 19, 2003 letter signed by the university system president. The letter advised that Mr. Morehouse had the right to appeal the termination to the Commission. Mr. Morehouse filed his appeal timely in January 2004. Concerning the games that he missed on October 25, 2003 and November 1, 2003, Mr. Morehouse asserted that his supervisors gave him oral permission to the effect that he could not be “forced to work on his day off’ even if it was a game day. Concerning his lateness to the November 8, 2003 game, Mr. Morehouse claimed that he never received the memo to report early.

A Commission referee conducted hearings on June 22, June 23, and July 15 of 2004. At some point following the hearings but before a decision or opinion was issued, the referee became aware that Mr. Morehouse might not have been a permanent employee at the time of his termination. If so, then Mr. Morehouse was not actually entitled to the extensive procedural due process he had already received. The referee called for a status conference on this issue in October 2005 and a hearing was held in January 2006.

The referee’s opinion was released on February 1, 2006. The referee found that Mr. Morehouse was at no pertinent time a permanent employee of Southern and thus could be dismissed at will without further civil service procedural due process. Mr. Morehouse was given the opportunity to amend his appeal to claim discrimination or a specific violation of the civil service rules for probationary separation; but he did not do so. Mr. Morehouse next applied for Commission review of the referee’s decision, which was denied |Rin a March 22, 2006 notice of decision affirming the referee’s finding that Mr. Morehouse was a probationary employee subject to termination at will by Southern. This appeal followed.

Mr. Morehouse alleges that the Commission referee erred in: (1) reopening the case after it was fully tried on the merits in the summer of 2004 and both parties had rested their cases, and (2) in finding on the employment status issue that he was not a permanent employee at the time of his termination.

DISCUSSION

We note at the outset that on appeal, factual determinations of the Commission or a referee should be given great weight and should not be reversed unless they are clearly wrong or manifestly erroneous. Additionally, decisions or actions of the Commission or a referee should not be reversed unless they are arbitrary, capricious, or an abuse of discretion. However, with respect to Commission decisions as to jurisdiction, procedure, and interpretation of laws and regulations, the judicial review function is not so limited. Rather, the court performs its traditional plenary functions and applies the “error of law” standard. James v. LSU Health Sciences Center, Medical Center of Louisiana at New Orleans, 2001-1853, p. 3 (La.App. 1 Cir. 11/8/02), 834 So.2d 470, 472.

Assignment of Error # 1

Mr. Morehouse’s first assignment of error alleges that the civil service referee erred in re-opening the case for hearing on the subject of his employment status well after the time when the merits of the matter had been heard and both parties had rested their cases. He argues that the referee’s action violated principles of es-toppel and due process, the limited Rand delegated authority of civil service referees, and Civil Service Rule 13.19(m), which prevents an appointing authority from supplementing or enlarging charges or allegations in a letter of termination.

Southern argues that the principle of estoppel is inapplicable here, that the referee did not exceed her legal authority in holding the special hearing on Mr. Morehouse’s employment status, that Mr. Morehouse’s due process rights were not violated, that Civil Service rule 13.19(m) did not apply in these circumstances, and that Civil Service rule 18.14 grants broad authority to the Commission and its referees to determine the viability of an action, which includes the power to act on their own motion at any time. Pursuant to the principles noted above, we review for legal error the referee’s decision to hold a special hearing for the purpose of determining Mr. Morehouse’s employment status at the time Southern terminated him.

Mr. Morehouse’s counsel raised these objections at the outset of the hearing. The referee responded that determination of an employee’s status did not constitute an enlargement or supplementation of the original allegations made by an appointing authority but, rather, amounted to a jurisdictional question as to whether the case was properly before a Commission referee. The referee also concluded that the special hearing on |7Mr. Morehouse’s employment status did not amount to either a re-hearing or a re-opening of the matter because a final opinion in writing had never been issued and also that the hearing served purposes of efficiency and the need for a complete record subject to appeal either at the Commission or judicial level.

Few cases appear to exist on this particular issue, but our reading of several Civil Service Rules convinces us that the referee here was well within her legal authority to call the special hearing on Mr. Morehouse’s employment status. Rule 13.14(d), the text of which appears supra at note 4, allows civil service referees to dispose of groundless appeals on their own motions. In addition, Rule 13.20(b) provides referees with subpoena powers and Rule 13.21(a) allows referees to “to order the appearance of witnesses and compel the production of books and papers pertinent to the issues involved in any appeal.” As the question whether Mr. Morehouse was a probationary or permanent employee at the time of his termination was not a supplementation or enlargement of the substantial issues at hand, but was pertinent to the referee’s ability to determine the propriety of Mr. Morehouse’s appeal, we conclude that the referee committed no legal error in calling the special hearing. This assignment of error is without merit.

Assignment of Error # 2

Mr. Morehouse’s second assignment of error challenges the referee’s decision on the merits of the specific issue that Mr. Morehouse was- not a permanent employee at the time of his termination. The referee considered |sMr. Morehouse’s evidence, particularly the February 16, 2003 document recommending permanent status, but concluded that Mr. Morehouse was not a permanent employee at the time of his termination. The referee’s opinion emphasized as determinative the fact that no actual “appointing authority” at Southern had taken “conscious action... to confer permanent status” by certifying to the Commission that Mr. Morehouse had “met the required standard of work” during his probationary period.

Mr. Morehouse acknowledges that he did not achieve permanent status as a formal matter, but he argues that the Supreme Court has recognized the possibility that a procedural due process property interest in a government benefit or service may be conferred in a tacit or implied manner. Specifically, Mr. Morehouse points to the following language in the Supreme Court case of Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 2695, 33 L.Ed.2d 570 (1972):

A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit. . .Explicit contractual provisions may be supplemented by other agreements implied from ‘the promisor’s words and conduct in light of the surrounding circumstances.’ ... ‘(t)he meaning of (the promisor’s) words and acts is found by relating them to the usage of the past.’

Perry, 408 U.S. at 601-02, 92 S.Ct. at 2699-2700.

Mr. Morehouse correctly asserts that our supreme court adopted this jurisprudence in Driscoll v. Stucker, 2004-0589, p. 10 (La.1/19/05), 893 So.2d 32, 41-42. Although the facts in that case are not quite on point with the matter here, the supreme court found there that the plaintiff, a doctor, |flhad shown that upon successful completion of the defendant school’s medical program, he acquired a “legitimate claim of entitlement,” and thus a protected property interest, in receiving a recommendation from the school that he be permitted to take the board certification exam in his field; he could not take the exam without such a recommendation. The court continued:

Existing rules or understandings stemming from independent sources such as state law create and shape what property interests are subject to due process protection under the Fourteenth Amendment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Explicit contractual provisions or “other agreements implied from the promisor’s words or conduct in light of the surrounding circumstances” may also create property interests. [Perry, 408 U.S. at 601-02, 92 S.Ct. at 2700],

Driscoll, 2004-0589 at p. 10, 893 So.2d at 41-42.

Mr. Morehouse argues that: (1) his department chiefs clear recommendation that he receive permanent status and (2) Southern’s obvious treatment of him as a permanent employee throughout this episode, essentially its “words or conduct in light of the surrounding circumstances,” combined to create an implied or tacit understanding that he had achieved permanent status such that a due process property right had attached. He claims that, as such, he is entitled to all available procedural due process, including a resolution on the merits of his case as heard by the civil service referee.

Southern argues in response that although Mr. Morehouse received his department’s recommendation for permanent status, no formal appointing authority at the university ever took the necessary affirmative or actual clerical steps to complete the process. As such, Mr. More-house cannot have attained permanent status “by default or inaction.” Southern refers for support to Pope v. New Orleans City Park, 95-1634 (La.App. 1 Cir. 4/4/96), 672 So.2d 388. In that case, this court recognized a substantive change made by the Commission to Civil Service Rule 9.2 in 1986. Under the new rule, a probationary employee can no longer attain permanent status by default upon completion of a six-month probationary period. A clear and express statement of certification by the appointing authority of the entity is now required on a standardized form.

Clearly, this did not happen in Mr. Morehouse’s case. But Southern’s argument fails in its attempt to equate the Pope rule prohibiting default acquisition of permanent status with the Roth and Perry rules that an employing entity’s actions or conduct may confer upon an employee a property interest in the procedural rights of permanent status for due process purposes. Here, Southern’s actions and conduct vis-á-vis Mr. Morehouse reflect a belief and understanding on the part of Southern personnel that Mr. Morehouse was indeed a permanent employee for all intents and purposes.

To wit, we relate the following from the record. Frances Smith testified at the special hearing on behalf of Southern. She is currently the | n assistant to the president of the Southern University system, but at the pertinent time she was the university’s assistant vice president for human resources, counsel to the president, and the designated appointing authority in all matters dealing with classified employees at Southern. She testified: (1) that a series of internal difficulties and civil service compliance problems plagued Southern’s human resources department during the time at issue, (2) that a department head’s recommendation that an employee receive permanent status was normally approved by the human resources department and signed by the chancellor as a matter of course, and (3) that some error occurred in the human resources department’s usual processes to keep Mr. More-house from obtaining permanent status upon his department chiefs recommendation. Ms. Smith also testified that at the time of Mr. Morehouse’s termination, he was treated like a permanent employee, i.e., fired for cause, provided with a formal letter of termination, and given due process rights to appeal or respond that would not have been afforded to a probationary employee.

There seems little doubt but that the university itself understood Mr. More-house to be a permanent employee as of February 2003. This understanding could also explain why, even if Mr. Morehouse was not formally made permanent in February 2003 after six months, the university’s human resources department took no action to either convert him to permanent status or else “separate” him on his one-year anniversary. That date fell in September 2003, weeks before any of the problems with his attendance to work football games arose.

In light of the foregoing and pursuant to the Roth and Perry | ^jurisprudence, we conclude that Southern’s “words or conduct in light of the surrounding circumstances” amounted to an implied or tacit understanding that Mr. Morehouse had achieved permanent status such that a property interest or right attached for procedural due process purposes. As such, Mr. Morehouse is entitled to all available procedural due process, including a resolution on the merits of his case as heard by the Commission referee. As the matter has already been heard on the merits by a Commission referee, but no opinion has yet been issued, resolution may be effectively and efficiently had at that level; we remand to the Commission for further proceedings in accordance with this decision.

CONCLUSION

For the above and foregoing reasons, we reverse and remand this matter to the Louisiana Civil Service Commission for further proceedings in accordance with this decision. Costs in the amount of $389.00 will be assessed against defendant, Southern University.

REVERSED AND REMANDED.

      . In pertinent part, “[t]he final decision of the commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.”

      . "Separation” is the term used by the Commission for termination of an employee.

      . See supra note 1.

      .In pertinent part, "the charges expressed in writing by the appointing authority as cause for demotion, suspension, dismissal, or other action, shall not be accepted as prima facie true. Evidence shall not be received from an appointing authority to supplement or enlarge the charges contained in such written document. The appellant may rebut any proof offered by the appointing authority in support of the charges.”

      . 13.14 Summary Disposition of Appeal.
      (a) At any time after the docketing of an appeal a written request may be filed by any interested party for summary disposition thereof on any of the following grounds:
      1. That the Commission lacks jurisdiction of the subject matter, or of the person against whom relief is sought.
      2. That the appellant has no legal right to appeal.

      (d) The Commission or a referee, on its or his own motion, may at any time summarily dispose of an appeal on any of the grounds listed in Subsection (a) hereof or in accordance with the provisions of Rule 13.19(e).

      . "A referee shall have subpoena power and power to administer oaths as well as the powers granted in this Chapter.”

      . "The Commission, each member thereof, the Director, the Deputy Director, any referee appointed by the Commission, and any specially designated agent of the Commission shall have the power to order the appearance of witnesses and compel the production of books and papers pertinent to the issues involved in any appeal, provided such witnesses and such books and papers are within the State.”

      . This is a technical civil service term defined by Rule 1.4 as “the agency, department, board, or commission, and the officers and employees thereof authorized by statute or by lawfully delegated authority to make appointments to positions in the State Service.”

      . See Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 695, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

      .On the surface, the facts in Pope appear to be on point with those in this case, but a closer reading brings forth the differences between the two. In Pope, as here, the worker was also recommended for permanent status after just six months, but his paperwork indicates that this did not occur because the worker was only on temporary status at the time, not probationary status. Pope, 95-1634 at p. 2, 672 So.2d at 389. It does appear that the change was indeed made at that time to convert him to probationary status. Id. The remainder of the case deals with whether the worker could automatically acquire permanent status thereafter in light of intermittent terminations and returns to temporary status as well as without any further express recommendation by his superiors that he be converted to permanent status. Some clerical error or "administrative oversight” did occur at one point during what appears to have been a rocky three years of employment, but the error does not appear to have concerned an express recommendation for permanent status that went unprocessed, as is the situation in this case. Id. at pp. 2-3, 672 So.2d at 389.

      . The rule currently and at the time in question reads as follows:
      (a) Permanent appointment of.a probationary employee shall begin upon certification by the appointing authority. Certification will consist of a statement in the “remarks” section of the Standard Form I, "I certify that this employee has met the required standard of work during the probationary period.”
      (b) A permanent appointment must be reported by Standard Form 1.
      (c) The appointing authority shall separate employees who have not been certified as permanent at the end of the twelve month probationary period in accordance with the provisions of Rule 9.1(e).

      . As discussed supra in note 9, the facts of Pope are also insufficiently on point with those here to be controlling precedent.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Elfredroe LOVE v. AAA TEMPORARIES, INC.
    No. 2006 CA 1679.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Philip S. Brooks, Jr., New Orleans, Emile C. Rolfs, III, Baton Rouge, Counsel for Defendani/3rd Party Plaintiffs/Appellants Apex Oil Company, Inc. and Petroleum Fuel and Terminal Company, Inc.
    Keely Y. Scott, Christopher J. Bourgeois, Jacqueline B. Rombardo, John J. Price, Baton Rouge, Counsel for Defendant/Appellee Scottsdale Insurance Company.
    Carvel A. Sims, Leo Berggreen, Woodrow W. Wyatt, Baton Rouge, Counsel for Plaintiff Elfredroe Love.

      David L. Dawson, Baton Rouge, Counsel for Defendant AAA. Temporaries, Inc.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

12In this appeal, Apex Oil Company, Inc. and Petroleum Fuel and Terminal Company, Inc. (collectively “Apex”) appeal a summary judgment granted by the trial court, wherein the trial court dismissed its third-party demand against Scottsdale Insurance Company.

FACTS AND PROCEDURAL HISTORY

This matter originated as a tort action filed pursuant to 33 U.S.C. § 905(a) against AAA Temporaries, Inc. (AAA), plaintiff Elfredroe Love’s direct employer, for injuries sustained, on September 3, 1991, in the course and scope of his employment as a deckhand. In a supplemental and amending petition for damages, plaintiff named Apex as a defendant in the suit. Plaintiff had been assigned by AAA to work for Apex at its Port Alen facility and was performing longshoring duties at the time of his injury. Plaintiff asserted that Apex had failed to secure insurance coverage pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901, et seq., and therefore, the plaintiff was electing to pursue his claims against Apex in tort in accordance with 33 U.S.C. § 905(a). By summary judgment, the trial court determined that Apex did not have an insurance policy providing coverage under the LHWCA in effect at the time of the plaintiffs accident and decreed that the plaintiff could pursue his claims against Apex as a tort action pursuant to 33 U.S.C. § 905(a). Thereafter, the plaintiff filed another motion for summary judgment to determine the liability of Apex. Following a hearing on the motion, the trial court granted summary judgment in favor of the plaintiff, which was subsequently upheld by this court on appeal. Love v. AAA Temporaries, Inc., 03-2735 (La.App. 1st Cir.11/10/04), 897 So.2d 671.

In the meantime, Apex filed a third-party demand against AAA and Scottsdale Insurance Company, AAA’s comprehensive general liability insurer, averring:

UHL
AAA was insured by Scottsdale on the date of the plaintiffs alleged accident under a general liability insurance policy which included contractual liability coverage for [Apex],
IV.
AAA agreed to provide the aforementioned insurance coverage for the benefit of [Apex] and to indemnify [Apex] for any claims made by laborers provided by AAA.
V.
As a result, [Apex has] a contractual liability claim against AAA which is expressly covered under Scottsdale’s general liability insurance policy.
VI.
Furthermore, [Apex asserts] a direct action against Scottsdale under the provisions of the aforementioned insurance policy in accordance with Louisiana Revised Statute 22:655 et. seq., Louisiana’s Direct Action Statute.

In response thereto, Scottsdale filed an answer denying liability and later filed a motion for summary judgment, contending that Apex’s claims were not covered under the Scottsdale policy in effect at the time of the plaintiffs accident. The trial court initially denied Scottsdale’s motion for summary judgment, but later granted the motion when it was re-urged by Scottsdale. It is that summary judgment that Apex now appeals.

STANDARD OF REVIEW

On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Brumfield v. Gafford, 99-1712, p. 3 (La.App. 1st Cir.9/22/00), 768 So.2d 228, 225. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ferguson v. Plummer’s Towing & Recovery Inc., 98-2894, pp. 3-4 (La.App. 1st Cir.2/18/00), 753 So.2d 398, 400.

|4A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Naquin v. Louisiana Power & Light Company, 98-2270, p. 4 (La. App. 1st Cir.3/31/00), 768 So.2d 605, 607, writ denied, 00-1741 (La.9/15/00), 769 So.2d 546. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

The burden of proof is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Waguespack v. Richard Waguespack, Inc., 06-0711, p. 3 (La.App. 1st Cir.2/14/07), 959 So.2d 982.

DISCUSSION

In this appeal, Apex submits that based on the evidence presented, namely the Scottsdale insurance policy and the deposition testimony of the principals of Apex and AAA, genuine issues of material fact exist regarding insurance coverage that make summary judgment improper.

|sAn insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. Bergeron v. Williams, 05-0847, pp. 14-15 (La.App. 1st Cir.5/12/06), 933 So.2d 803, 813.

Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. For the rule of strict construction to apply, an insurance policy must not only be susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Allstate Insurance Company v. Reid, 04-1620, p. 4 (La.App. 1st Cir.11/30/05), 934 So.2d 56, 59-60, writ denied, 06-2099 (La.11/17/06), 942 So.2d 534.

If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. La. C.C. art.2046. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or to achieve an absurd conclusion. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose reasonable conditions on the obligations the insurer contractually assumes. Bonin v. Westport Insurance Corporation, 05-0886, p. 5 (La.5/17/06), 930 So.2d 906, 910-911. When the language of an insurance policy is clear, courts lack the authority to change or alter its terms under the guise of interpretation. Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Company, 93-0911 (La.1/14/94), 630 So.2d 759, 764.

| fiWith these rules of interpretation in mind, we must consider the pertinent language of the Scottsdale insurance contract, which provides, in pertinent part:

CONTRACTUAL LIABILITY INSURANCE
(Designated Contracts Only)
SCHEDULE
The insurance afforded for contractual liability is only with respect to such of the following Coverages as are indicated by a specific premium charge applicable thereto. The limit of the company’s liability against each such Coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.

The schedule then lists “Y-Contractual Bodily Injury Liability” and “Z-Contractual Property Damage Liability” as the coverages afforded for contractual liability. The schedule also lists AAA’s contract with Apex as a designated contract. The policy then goes on to state:

I. COVERAGE Y — CONTRACTUAL BODILY INJURY
LIABILITY
COVERAGE Z — CONTRACTUAL PROPERTY DAMAGE
LIABILITY
The company will pay on behalf of the insured all sums which the insured, by reason of contractual liability assumed by him under a contract designated in the schedule for this insurance, shall become legally obligated to pay as damages because of
Y. bodily injury or
Z. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.
IV. ADDITIONAL DEFINITIONS
When used in reference to this insurance (including endorsements forming a part of the policy):
| /contractual liability” means liability expressly assumed under a written contract or agreement; provided, however, that contractual liability shall not be construed as including liability under a warranty of the fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;

Interpreting the foregoing provisions together so that each provision is given the meaning suggested by the contract as a whole, La. C.C. art.2050, it is clear that Apex’s contract with AAA had to be in writing to be covered under the contractual liability provisions of the Scottsdale policy. Yet, it is undisputed that the contractual agreement between Apex and AAA was not in writing, but was an oral agreement fashioned by Ina Guz-zardo and Roger Lanier, the principals of AAA and Apex, respectively. Although Apex goes to great lengths to establish that as a maritime contract such an oral agreement is proper, the validity of the oral agreement is not questioned. The concern is that under the specific terms of the Scottsdale policy, the contractual liability coverage only extended to “liability expressly assumed under a written contract or agreement.” Therefore, under the plain language of the insurance policy, there would be no contractual liability coverage for Apex’s claims.

Moreover, even assuming that an oral contract was allowed under the terms of the contractual liability provisions of the Scottsdale policy, the determination that there is no coverage for Apex’s claim would still be proper. According to the deposition testimony of the principals of Apex and AAA, the oral agreement expressly provided that AAA would maintain employees it sent to work for Apex on its payroll, cover the employees with its insurance, and do the payroll taxes for the employees. What gave rise to the underlying suit for which Apex is seeking insurance coverage from Scottsdale is AAA’s failure to obtain the proper insurance to cover the claims of the plaintiff, an employee sent by AAA to work for Apex. As such, the claim made by Apex does not stem from AAA being legally obligated to pay to Apex a certain sum for damages based on personal injury or property Isdamage. Rather, it will stem from AAA being obligated to pay to Apex a certain sum, namely, whatever damages the plaintiff recovers from Apex, based on AAA’s failure to obtain the requisite insurance to cover the plaintiffs claims against Apex; or in other words, AAA’s breach of contract. As such, the contractual liability coverage, limited to claims based on personal injury or property damage, cannot be extended to cover a claim for breach of contract. See Ingalls Shipbuilding v. Federal Insurance Co., 410 F.3d 214, 221-222 (5th Cir.), reh’g granted in part, 423 F.3d 522 (5th Cir.2005). Thus, the summary judgment rendered by the trial court in favor of Scottsdale was properly granted.

CONCLUSION

For the foregoing reasons, we affirm the summary judgment rendered by the trial court declaring a lack of coverage and dismissing Apex’s third-party demand against Scottsdale Insurance Company. All costs of this appeal are cast to Apex Oil Company, Inc. and Petroleum Fuel and Terminal Company, Inc.

AFFIRMED.


author: WHIPPLE, J.

text:
    Anderson CUTNO v. GAINEY’S CONCRETE PRODUCTS.
    No. 2006 CA 1582.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Joseph Albe, Bay St. Louis, MS, Counsel for Plaintiff/Appellant, Anderson Cut-no.
    Christopher Broadwater, Baton Rouge, Counsel for Defendant/Appellee, Gainey’s Concrete Products.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

| .This is an appeal by plaintiff, Anderson Cutno, from a judgment of the Office of Workers’ Compensation, District 6, dismissing Cutno’s claim for additional benefits and awarding reimbursement to the workers’ compensation carrier for all benefits paid after March 28, 2005. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Cutno, a forklift operator, was injured in a work-related accident on November 19, 2004, while employed by Gainey’s Concrete Products (Gainey’s). Cutno fell from the forklift and struck the ground three feet below, twisting his knee. He first sought treatment for his injuries on November 22, 2004, and he initially reported complaints of right knee and hip pain. With regard to the hip, he was diagnosed with “soft tissue swelling [and] tenderness compatible with a bruise.” X-rays and an MRI of his knee demonstrated that there was no fracture or internal derangement. According to the medical records, Cutno’s treatment thereafter focused on his knee, for the pain and swelling he was experiencing.

During treatment of his knee, a dispute arose between Cutno and his employer’s insurance company as to whether Synvisc injections in the right knee were medically necessary. Additionally, five months after Cutno’s accident, a question arose as to whether Cutno had also sustained a back injury as a result of the work accident. Cutno eventually filed a disputed claim for compensation. The issues raised by the parties- included: (1) Cutno’s average weekly wage and corresponding weekly indemnity rate; (2) Cutno’s entitlement to Synvisc injections for the right knee; (3) whether Cutno’s back complaints were related to the work accident; (4) the nature and extent of Cutno’s disability and whether such disability was related to |sthe work accident; and (5) Cutno’s entitlement to penalties and attorney’s fees.

Following trial in this matter, the workers’ compensation judge ordered additional medical testing and a report from Cutno’s treating physician to determine whether his back and hip problems were caused by the work accident. After receiving the physician’s report, the workers’ compensation judge rendered judgment, finding that Cutno had failed to carry his burden of proving: that the Synvisc injections were reasonable and necessary medical treatment as contemplated by LSA-R.S. 23:1203 ; that he injured his back and/or his hip as a result of the work-related accident; and that he was temporally and totally disabled as a result of the work-related accident. The workers’ compensation judge further found that Cutno had returned to his pre-accident condition as of March 28, 2005, and that the workers’ compensation insurer for Gainey’s, who had continued to pay weekly indemnity benefits through the date of trial, was entitled to reimbursement for indemnity benefits paid after March 28, 2005. Cut-no’s request for penalties and attorney’s fees was likewise denied. Cutno now appeals, listing six assignments of error.

ISSUES BEFORE THE WORKERS’ COMPENSATION JUDGE

(Assignments of Error Nos. 1 & 3)

In his first assignment of error, Cutno contends that the workers’ compensation judge erred as a matter of law in addressing issues not properly before the workers’ compensation court. Also, in assignment of error number three, Cutno contends that the workers’ compensation judge erred in failing to follow the parties’ judicial stipulation and compromise regarding his entitlement to indemnity benefits.

14SpecificalIy, Cutno contends that at the beginning of trial, defense counsel stipulated as to Cutno’s average weekly wage and corresponding compensation rate; agreed to pay the difference due on all past weekly indemnity benefits paid; and stated that Gainey’s, as part of the partial compromise, would pay a penalty of $1,000.00 “to resolve any and all claims with regard to indemnity benefits” raised in Cutno’s disputed claim for compensation. (Emphasis in Cutno’s brief).

Additionally, according to Cutno, defense counsel further stipulated that the only issues to be tried were approval of certain medical procedures and Cutno’s entitlement to penalties and attorney’s fees. Despite the fact that the pretrial statement of Gainey’s listed other disputed issues to be tried, Cutno contends that the workers’ compensation judge was bound by the stipulation of defense counsel and that the issues for resolution by the OWC judge were limited to only those specific issues, ie., approval of certain medical procedures and penalties and attorney’s fees.

Pursuant to rule 6201 of the Office of Workers’ Compensation Hearing Rules, only those issues listed in the pretrial statements shall be litigated at trial. We also note that the workers’ compensation judge has great discretion in conducting trials in a manner that he determines to be consistent with the fair administration of justice. Teano v. Electrical Construction, Co., 2002-2032 (La.App. 1st Cir.5/9/03), 849 So.2d 714, 719. In the instant case, the issues of the nature and extent, if any, of Cutno’s continuing disability and Cutno’s entitlement to disability and medical benefits, if any, were clearly listed in Gainey’s pretrial statement as issues to be litigated. Moreover, counsel for Cutno stated at the beginning of |RtriaI that Cutno had “submitted a final pretrial which enumerates several issues.” Some of the issues listed in Cutno’s final pretrial statement were whether he had suffered injuries as a result of the work-related accident, which injuries were causally related to the work accident, and whether Cutno was entitled to past or future Temporary and Total Disability (TTD) or Supplemental Earnings Benefit (SEB) payments.

Furthermore, while Cutno is correct in arguing that a stipulation has the effect of a judicial admission or confession, Veal v. American Maintenance and Repair, Inc., 2004-1785 (La.App. 1st Cir.9/23/05), 923 So.2d 668, 673, in the instant case, there was clearly a dispute as to what the parties intended to stipulate. Notably, when plaintiffs counsel stated that the parties were additionally stipulating that Gainey’s and its insurer “does [sic] not have any information to dispute the assertion that 100 percent of the disability that [Cutno] now suffers is causally connected to the injury” alleged in the Disputed Claim, defense counsel objected to that stipulation, stating that that issue was indeed an issue to be tried.

Accordingly, based on our review of the record and considering the OWC rules, we find no abuse of discretion by the workers’ compensation judge in addressing the issues of the nature and extent of Cutno’s disability from the work accident and whether he was entitled to any additional disability and medical benefits. See Todd v. Wal-Mart, 2002-1381 (La.App. 1st Cir.5/9/03), 849 So.2d 682, 686, writ denied, 2003-1596 (La.10/3/03), 855 So.2d 319.

CUTNO’S ENTITLEMENT TO ADDITIONAL BENEFITS

(Assignments of Error Nos. 2 & 4)

In his second assignment of error, Cutno contends that the workers’ compensation judge committed manifest error in finding: (1) that Cutno had returned to his pre-accident condition as of March 28, 2005; (2) that he failed to prove his entitlement to TTDs or SEBs; and (3) that the workers’ compensation insurer was entitled to reimbursement of indemnity benefits paid after March, 28, 2005. In his fourth assignment of error, Cutno contends that the workers’ compensation judge committed manifest error in concluding that Cutno had failed to prove his back and hip conditions were caused or aggravated by his work-related accident.

A workers’ compensation claimant must prove by a preponderance of the evidence that an employment accident occurred and that it had a causal relationship to the resulting disability. Roberts v. Thibodaux Healthcare Center, 2005-0774 (La.App. 1st Cir.3/24/06), 934 So.2d 84, 92; Grant v. Assumption Parish School Board, 2001-0272 (La.App. 1st Cir.3/28/02), 813 So.2d 622, 624.

When an employee suffers from a pre-existing medical condition, he may still prevail if he proves that the accident aggravated, accelerated, or combined with the disease for which compensation is claimed. Roberts, 934 So.2d at 92. When an employee proves that before the accident, he had not manifested disabling symptoms, but that commencing with the accident, the disabling symptoms appeared and manifested themselves, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling |7condition, the employee’s work injury is presumed to have aggravated, accelerated or combined with the pre-existing disease or infirmity to produce his disability. Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce his disability. Roberts, 934 So.2d at 92-93.

Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Roberts, 934 So.2d at 91. Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of review. Clausen v. D.A.G.G. Construction, 2001-0077 (La.App. 1st Cir.2/15/02), 807 So.2d 1199, 1202, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851.

Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Lizana v. Gulf Coast Pain Institute, 2003-1672 (La.App. 1st Cir.5/14/04), 879 So.2d 763, 765. If the fact finder’s 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. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990). Moreover, 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. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

I sIn the instant case, with regard to whether the accident caused any back or continuing hip injury, we note that Cutno initially reported on his medical questionnaires that he was experiencing knee and hip pain only. He was diagnosed at North Oaks Hospital on November 22, 2004 with a bruise to the hip. Dr. Paul Doty, the employer’s choice of orthopedic surgeon, examined Cutno on November 23, 2004, and performed a Patrick’s test, which was negative for any injury to the hip. Additionally, according to Dr. John Famb-rough, Cutno’s choice of orthopedic surgeon, during the course of his treatment of Cutno from December 6, 2004 to January 26, 2005, Cutno never complained of any back or hip problems.

On appeal, Cutno argues that he carried his burden of establishing causation noting that when he was examined by Dr. Doty on March 28, 2005, Dr. Doty expressed the opinion that Cutno was suffering from sciatica and pain radiating from the lower back into the right hip and leg, which he related to the work accident. When Dr. Doty examined Cutno again on March 28, 2005, he noted that Cutno had diminished range of motion in the lower back with low back distress and sciatica. Dr. Doty further noted that Cutno had been treated in the past for a disc bulge and lumbar disc syndrome, and he opined that Cutno may have “torqued his right lower extremity causing this present sciatica.” Cutno contends, Dr. Doty’s opinion clearly established causation for his current back and hip complaints.

However, the record reflects that after again reviewing the records of Dr. Famb-rough (the treating physician), Dr. Doty changed his opinion as to the causal connection between Cutno’s back and hip complaints and the work accident. Specifically, Dr.'Doty noted that Cutno had never complained to Dr. Fambrough of back complaints or sciatica throughout the course of Dr. Fambrough’s treatment of Cutno. Thus, Dr. Doty opined, 19given Cut-no’s lack of complaints of sciatica or low back pain in the months following the accident, Dr. Doty could not say with reasonable medical certainty that these problems resulted from the November 19, 2004 work accident.

Moreover, in addition to noting the lack of back or hip complaints during his treatment of Cutno, Dr. Fambrough also stated that Cutno never had “any hint of sciatica,” which would have been caused by a disc bulge. After MRIs of Cutno’s lumbar spine and pelvis were performed following trial of this matter, Dr. Fambrough issued a follow-up report, stating that the MRI of the pelvis was normal and that the MRI of the lumbar spine revealed degenerative changes compatible with Cutno’s age.

With regard to Cutno’s right knee injury, Dr. Fambrough recognized that Cutno suffered from pain and swelling after the accident. However, Dr. Fambrough noted that Cutno had previously exhibited mild effusion (or fluid in his knee), a condition for which he had recently been treated, in August 2004, due to degenerative changes in his knee. Thus, Dr. Fambrough believed that the work accident had caused Cutno’s pre-existing degenerative knee condition to become inflamed and develop fluid in the joint.

While Dr. Fambrough recommended Synvisc injections for the knee on January 14, 2005, Dr. Fambrough last treated Cut-no on January 26, 2005, at which time there was no acute swelling, discoloration or increased heat and Cutno’s complaints were noted only as discomfort with prolonged standing. Cutno never returned to Dr. Fambrough for any additional treatment or pain medication for the knee.

Thereafter, when Dr. Doty examined Cutno on March 28, 2005, he noted that Cutno did not have any effusion of his right knee and that the |inknee was stable. Dr. Doty opined that while Cutno had strained his degenerative knee in the work accident, that injury had resolved itself as of March 28, 2005.

Considering the foregoing and the record as a whole, and the standards of review by which we are bound, we are unable to say that the workers’ compensation judge committed manifest error in finding that Cutno’s work-related injury to his right knee had resolved as of March 28, 2005 or in finding that Cutno failed to establish a causal connection between his later back and hip complaints and the work accident, particularly given the absence of complaints for months after the accident. On the record before us, we are unable to say the OWC judge manifestly erred in concluding that Cutno failed to prove a continuing work-related disability (and entitlement to any continuing benefits). Thus, the judge properly ruled that Gainey’s workers’ compensation insurer was entitled to reimbursement for benefits paid after March 28, 2005.

PENALTIES, ATTORNEY’S FEES AND JUDICIAL INTEREST

(Assignments of Error Nos. 5 & 6)

In his final assignments of error, Cutno contends that the workers’ compensation judge erred in failing to award him penalties and attorney’s fees for failure to authorize and pay for medical benefits and in failing to award judicial interest on benefits due. However, because we have concluded that the workers’ compensation judge was not manifestly erroneous in finding that Cutno was not entitled to any additional benefits, these issues are moot.

^CONCLUSION

For the above and foregoing reasons, the May 31, 2006 judgment is affirmed. Costs of this appeal are assessed against appellant, Anderson Cutno.

AFFIRMED.

McDONALD, J., concurs.

      . Cutno has not challenged on appeal the workers’ compensation judge's finding that the injections were not reasonable and necessary medical treatment, contending that the issue is “moot for the moment,” since he will "have to see a new doctor.”

      . As explained by the workers’ compensation judge in reasons for judgment, the partial compromise and agreement to pay $1,000.00 dealt with the issue of whether Cutno worked a forty-hour work week and thus, what his average weekly wage and corresponding weekly indemnity benefit should have been. Gainey’s stipulated that Cutno was entitled to a presumption that he worked forty hours per week, which affected the calculation of the compensation rate to which Cutno was entitled. In addition to agreeing to pay the difference for all past indemnity benefits, Gainey's agreed to pay an additional $1,000.00 to compromise this particular issue. The record does not reflect that this stipulation in any way encompassed or resolved the issue of Cutno’s continued entitlement to weekly indemnity benefits or further medical treatment.

      . While Cutno did initially suffer a bruise of the right hip, the record amply supports the workers' compensation judge’s implicit finding that the bruise had resolved itself.


author: PETTIGREW, J. GAIDRY, J. DOWNING, J., HUGHES, J.,

text:
    Gerald ESTRADE v. Richard STALDER, Linda Ramsay, Priscilla Pitre, Keith A. Cooley and the Department of Public Safety and Corrections.
    No. 2006 CA 0160.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Gerald Estrade, Kinder, Plaintiff-Appellant in Proper Person.
    William L. Kline, Baton Rouge, Defendant-Appellee Department of Public Safety and Corrections.
    Before: PETTIGREW, DOWNING, GAIDRY, McDonald, and HUGHES, JJ.
   PETTIGREW, J.

12Petitioner, Gerald Estrade, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (Department), seeks review of a judgment rendered in the trial court adopting the commissioner’s report. The crux of petitioner’s appeal is that the trial court erred in allowing him to realize only half of the educational good time earned. Petitioner also alleges, among other things, that the trial court erred in issuing a strike and dismissing his appeal. For the following reasons, we affirm in part and reverse in part.

Louisiana Revised Statutes 15:828(B) provides the following:

The secretary shall adopt rules and regulations in the facilities and institutions under the jurisdiction of the department to encourage voluntary participation by inmates in certified treatment and rehabilitation programs, including but not limited to basic education, job skills training, values development and faith-based initiatives, therapeutic programs, and treatment programs. When funds are provided, such educational programs shall be available at each penal or correctional institution under the jurisdiction of the department. The rules and regulations may include provisions for furloughs or good time, in addition to the provisions of R.S. 15:571.3(B), for offenders who are otherwise eligible, but no offender shall receive more than ten additional days per month and one hundred eighty days total good time for program participation.

Louisiana Revised Statutes 15:571.3(B) provides the following in pertinent part:

Every inmate in the custody of the department ... and sentenced to imprisonment for a stated number of years or months, ... may earn, in lieu of incentive wages, a diminution of sentence by good behavior and performance of work or self-improvement activities, or both, to be known as “good time”. Those inmates serving life sentences will be credited with good time earned which will be applied toward diminution of their sentences at such time as the life sentences might be commuted to a specific number of years. The secretary shall establish regulations for awarding and recording of good time and shall determine when good time has been earned toward diminution of sentence. The amount of diminution of sentence allowed under the provisions of this Section shall be at the rate of thirty days for every thirty days in actual custody except for an inmate convicted a first time of a crime of violence as defined in R.S. 14:2(13), who shall earn diminution of sentence at a rate of three days for every seventeen days in actual custody, including time spent in custody with good behavior prior to sentence for which defendant is given credit. (Emphasis added.)

The Department’s internal regulation No. B-04-003 addresses the educational good time credits. The regulation provides, in pertinent part, as follows:

|¾5. POLICY: Educational good time credit will be awarded in accordance with procedures outlined in this regulation. No inmate shall receive more than 10 additional days per month or 180 days total educational good time credits for program participation during their sentence. It is the Secretary’s policy that no inmate will be granted a furlough pursuant to La. R.S. 15:828(B).
8. PROCEDURES:
B. Credits will be awarded as follows:
1) Full-time assignment to an educational or certified program — 10 days per calendar month.
2) Part-time assignment to an educational or certified program — 1 to 5 days per calendar month....
C. The inmate will receive full good time credit for the month in which participation begins. No credit will be given for the month in which the program is completed or discontinued.
10. CREDITING GOOD TIME:
A. Under no circumstances will an inmate be credited with an amount of educational good time credit under the provisions of this regulation that will cause him to be overdue for release at the time of approval.
B. A total of 180 days educational good time credit may be earned by an inmate during his sentence. Some examples are noted as follows:
• If an inmate sentenced for simple burglary earns 180 days educational good time and releases on parole or GT/PS and is subsequently revoked on technical grounds and re-incarcerated to serve the remainder of his original sentence, • he cannot earn any more educational good time on the burglary sentence.
• If the same inmate earns 180 days educational good time, releases on parole or GT/PS and is revoked for a new felony and is sentenced on the new felony to a consecutive sentence, the inmate will be serving the remainder of his original sentence and can earn no more educational good time on that sentence. When he begins serving the new consecutive sentence, he may again earn up to a maximum of 180 days educational good time on the new sentence.
• If an inmate is serving a sentence for burglary and earns 180 days good time and while serving the sentence is convicted of battery of a correctional officer, he may earn additional educational good time on the new sentence, if | ¿consecutive, only after the inmate has full termed off of the original burglary sentence. If the new sentence is ordered served concurrent, the inmate has already received the maximum number of educational good time days on his sentences.
• If an inmate is serving multiple concurrent sentences, a maximum of 180 days educational good time may be earned on his total sentence.
• If an inmate earns educational good time, gets out on GT/PS and full terms off his sentence and is later returned on a new felony conviction, he may earn up to a maximum of 180 days educational good time on the new sentence.

Assignments of Error Numbers One, Three, Four, & Five

The first assignment of error concerns the Department’s practice of awarding “good time credit” instead of awarding the time in actual days. The third and fifth assignments of error concern the dismissal of petitioner’s suit and the costs that were assessed against petitioner below by the trial court. The fourth assignment of error concerns the strike that was rendered against petitioner for filing the suit. With the exception of the strike issue, we find no merit to any of these arguments.

Regarding the first assignment of error, the Department awarded petitioner with 90 days of educational good time, for which he was credited. Petitioner alleges it was error for the Department to award him only half of his educational good time credits earned. He contends he is due the full 180 days that he understood he was to earn and maintains that the 180 days should have been awarded in addition to the regular good time earned pursuant to La. R.S. 15:571.3(B). We find no merit to this argument.

After considering petitioner’s claims, the Commissioner found as follows with regards to the computation of petitioner’s educational good time credits and his release date:

It is apparent from the language of [La. R.S. 15:828] that the Department is entitled to determine the method by which educational good time is credited to an inmate for voluntary participation in the rehabilitative programs described, and the petitioner points to no authority that would contradict this opinion. The Department is entitled to calculate the number of days credited for educational program participation using the “comparison method”, which is, in fact, what was done in this particular case. The defendants awarded educational good time by moving the petitioner’s projected good time release date forward in time by one-half the amount of educational good time credit earned. Good | Rtime credits may be applied by applying fifty percent of the educational good time earned to the good time release date or by applying [one hundred percent] of the educational good time earned to the full term release date. There is nothing offered by the petitioner nor contained in the statutes or submitted by the petitioner as evidence that would indicate that the agency’s decision in this matter is either arbitrary, capricious, manifestly erroneous, or in excess of its statutory authority. Based upon the record submitted and the allegations of the petitioner herein, it is this Commissioner’s opinion that the petitioner has been awarded all of the educational good time credits to which he is entitled and that his good time release date has been calculated properly.

Based on our review of the record and applicable law, we find no error in these findings. A day-for-day credit is not mandated by La. R.S. 15:828(B) as is argued by petitioner. Moreover, there is nothing in the record to suggest that the method of calculation utilized by the Department has not been uniformly applied to all inmates who are eligible for educational credits. Based on the facts and circumstances of this case, petitioner has been awarded all of the educational good time credits to which he is entitled, and his good time release date has been calculated accordingly. Thus, the trial court did not err in dismissing his suit, with prejudice, at his cost.

However, we do not agree with the strike that was assessed against petitioner for “filing a suit that clearly fails to state a cause of action.” Although petitioner did not prevail in his argument below or on appeal, we do not find that his claim concerning the Department’s calculation of his good time credits and educational credits was either frivolous or malicious. Accordingly, we reverse that portion of the judgment.

Assignment of Error Number Two

In assignment of error number two, petitioner argues that the Department is delegating its authority with regard to calculation of good time to an outside source in violation of La. R.S. 39:1800.5, which provides as follows:

No contract for correctional services shall authorize, allow, or imply a delegation of authority or responsibility to a prison contractor for any of the following:
(1) Development and implementation of procedures for calculating inmate release and parole eligibility dates.
|⅜(2) Development and implementation of procedures for calculating and awarding sentence credits.
(3) Approval of inmates for furlough and work releases.
(4) Approval of the type of work inmates may perform and the wages or sentence credits which may be given the inmates engaging in such work.
(5) Granting, denying, or revoking sentence credits.

Petitioner bases his claim on the fact that Deputy Warden Cooley signed the First Step Response Form on his request for administrative relief. The Commissioner concluded that such an act was not in opposition to La. R.S. 39:1800.5. The Commissioner found no merit to petitioner’s challenge of Deputy Warden Cooley’s authority over his good time credits and determined that petitioner’s claim regarding this issue failed to state any basis for relief. Following our review of the record and applicable law, and based on the lack of evidence submitted by petitioner concerning this issue, we find no error in this finding.

CONCLUSION

For the above and foregoing reasons, we reverse that portion of the judgment that assessed a strike against petitioner. In all other respects, the judgment below is affirmed. All costs associated with this appeal are assessed against plaintiff-appellant, Gerald Estrade.

AFFIRMED IN PART, REVERSED IN PART.

GAIDRY, J., concurs and assigns additional reasons.

DOWNING, J., dissents and assigns reasons.

HUGHES, J., concurs with reasons.

GAIDRY, J.

concurring.

| ¶ While I agree with the majority’s holding and with the judgment of the trial court, I write separately to clarify my understanding of the proper calculation of educational good time. Louisiana Revised Statutes 15:828(B) mandates that the secretary of the Department of Public Safety and Corrections adopt rules and regulations to encourage inmates to participate in self-improvement programs. The statute also provides that the reward for such participation may include good time credits (up to a maximum of 180 days) in addition to the provisions of La. R.S. 15:571.3(B). Under La. R.S. 15:571.3(B), an inmate may earn diminution of sentence by good behavior and self-improvement activities. The Department of Corrections adopted a regulation (No. B-04-003) providing for educational good time credits of up to ten days per month or one hundred and eighty days total during their sentence.

The calculation is not complex. The inmate who is sentenced to ten years of imprisonment would have to serve 3,650 days unless his sentence is diminished by good behavior, self-improvement activities, or other credits he may be entitled to receive. If the inmate earns educational good time, this | ¡.reduces his original 3,650-day sentence by the number of days earned. For example, if the inmate earns 180 days of good time for educational self-improvement, his sentence is reduced by 180 days to 3,470 days (3,650 — 180 = 3,470). If the inmate continues on good behavior, he will earn further diminution of sentence. Although the rate at which an inmate earns diminution of sentence for good behavior varies depending upon his sentence, for purposes of this example we will assume the inmate is eligible to earn up to one day for each day served, reducing the served time to 1,735 days (3470 / 2 = 1,735).

In another method of calculating a sentence, when an inmate enters the institution, the diminution of the sentence for good behavior is immediately applied to his sentence to determine his “must serve time.” In the example given above, the inmate’s “must serve time” on his ten year sentence would be 1,825 days (3650 / 2 = 1825). If the inmate participates in a self-improvement program and earns 180 days of good time, the “must serve time” is then reduced by half of this additional good time and his sentence becomes 1,735 days (1,825 — (180/2) = 1,735). Both of these methods of calculation are in accordance with La.. R.S. 15:828(B), 15:571.3(B), and the Department of Corrections’ Regulation No. B-04-003.

As the calculations in this case are made in accordance with the above formula and the inmate has been given an appropriate reduction in his sentence, I join in affirming the trial court judgment.

DOWNING, J.,

dissenting.

| Substantial rights of Gerald Estrade have been prejudiced in that he has been deprived of 90 days of educational good time he earned. Accordingly, this court should reverse the judgment of the trial court and modify the decision of the Louisiana Department of Public Safety and Corrections (Department) pursuant to La. R.S. 15:1177(A)(9)(e) to ensure that Es-trade receives the full 180 days educational good time he has earned.

Louisiana has the highest per capita prison population in the country. When passing La. R.S. 15:828 the legislature, very wisely, intended to encourage inmates to pursue literacy because literacy tends to reduce recidivism rates. An inmate may accrue regular good time by just staying out of trouble, without any effort designed to keep him from returning to a life of crime. Those inmates who make the extra effort to better themselves should be encouraged in every way possible. To interpret a rule such that an inmate who actively betters himself receives in fact only one half of the 180 days he was told to expect is not logical, not in accordance with the legislative intent, and is arbitrary and capricious.

| aWhiIe the record does not include the calculations, all parties agree that Estrade realized only one half of the 180 days credit he actually earned by attending the educational program. I note that had the Department used a multiplier of two in calculating the educational good time, Petitioner would have realized the entire amount of goodtime earned.

Accordingly, I would find merit in Es-trade’s assignments of error seeking modification of the Department’s decision to reflect that Estrade is given an actual 180 days educational good time reduction in sentence. We should reverse the judgment of the trial court dismissing Es-trade’s petition and render accordingly.

HUGHES, J.,

concurring.

bin my opinion it is foolish for DOC not to fully implement the educational good-time incentive (apparently so it will be easy to count), but it would seem to be within their discretion.

      . Pursuant to La. R.S. 15:1177(A)(10), any offender who is aggrieved by an adverse decision of the Department may seek an appeal of a final judgment to the appropriate court of appeal.

      . Although petitioner filed in fonna pauperis, because he is unsuccessful in obtaining the relief sought, costs may be assessed against him. See Rochon v. Administrative Remedy Procedure, 2005-0452, p. 3 (La.App. 1 Cir. 3/24/06), 934 So.2d 67, 68, writ denied, 2006-1383 (La.1/26/07), 948 So.2d 162.

      . Both the statute and the administrative code authorize the Department to make rules to calculate educational good time. In this case, I assume that the Department employed a calculation similar to the following: (Length of year sentence in days 7670, less 180 days good time credit) (times .5) = 3745 under the formula we assume the Department utilized. This resulted in an actual 90-day reduction in Estrade’s sentence. If, however, the Department applied a multiplier of 2 to the educational credit awarded, the reduction in Es-trade’s sentence would have been a 180 days.
      Thus, applying an appropriate multiplier to the calculation will not result in the inmate being awarded more good time than allowed by law. The multiplier merely helps to ensure that full educational good time will be awarded.


author: GREG G. GUIDRY, Judge.

text:
    In re B.E.M. Applying for the Intra Family Adoption of C.J.M., Jr. a Child Under the Age of 17 Years.
    No. 07-CA-94.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Wiley J. Beevers, Raylyn R. Beevers, Barbara V. Madere, Attorneys at Law, Gretna, Louisiana, for Plaintiff/Appellee.
    Shaye R. Lirette, Renee Hatch Aguilar, Attorneys at Law, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

|2The biological mother (MRC) of the minor child (CJM, Jr.) appeals from the juvenile court judgment granting the intra-family adoption of CJM, Jr. by his stepmother/petitioner (BEM). For the reasons which follow, we affirm.

The petitioner in this intrafamily adoption case, the stepmother of CJM, Jr., is married to CJM, Sr. CJM, Sr. and MRC were previously married, and CJM, Jr. was born of this union on December 17, 1996. CJM, Sr. and MRC were divorced by judgment dated July 23, 1999. On that same date the parties consented to joint custody of CJM, Jr., with MRC originally named domiciliary parent. CJM, Sr. and BEM began living together shortly thereafter in 1999. In 2001, while continually struggling to care for CJM, Jr., MRC granted domiciliary custody to CJM, Sr. In 2002, MRC regained domiciliary custody. Having difficulty again, MRC asked CJM, Sr. and BEM to allow CJM, Jr. to live with them. On October 23, 2004, BEM and CJM, Sr. were married. Finally, on December 13, 2004, on the motion of | SCJM, Sr., the custody judgment was again modified, granting sole custody of CJM, Jr. to his father and supervised visitation to MRC. The judgment specified that if the parties failed to agree on a supervisor, the supervisor must be a licensed professional, to be paid by MRC. For approximately ten months thereafter, CJM, Sr. allowed MRC’s mother to supervise visits. However, in November 2005, following a problem with MRC being late to pick up the child and threatening to tell CJM, Jr. negative things about his father and BEM, CJM, Sr. notified MRC that he no longer agreed to allow her mother to supervise the visits. He requested that the supervisor be a licensed professional. MRC’s visits with CJM, Jr. ceased at that point. There was testimony that regardless of who had domiciliary custody of CJM, Jr., he has lived primarily with his stepmother and father since 1999.

On August 11, 2006, BEM filed the instant petition for the intrafamily adoption of her 10 year old stepson, CJM, Jr. CJM, Sr. executed an authentic act of consent that was filed with the petition. Thereafter, in September 2006, MRC filed a motion for unsupervised visitation in an ongoing proceeding in the Twenty-Fourth Judicial District Court for the Parish of Jefferson where other custody and visitation matters concerning CJM, Jr. had been litigated. On October 19, 2006, MRC filed an opposition in proper person to the adoption of her son, CJM, Jr. Following a hearing in which neither the child nor MRC were represented by counsel, the juvenile court granted BEM’s request to adopt CJM, Jr., terminating MRC’s parental rights to her son. It is from this judgment MRC appeals.

|4It is well settled that the party petitioning the court for adoption carries the burden of proving a parent’s consent is not required under the law. In re Bourgeois, 04-1466 (La.App. 5th Cir.4/26/05), 902 So.2d 1104. The burden of proof for the person seeking to adopt under such circumstances is clear and convincing evidence. In re Bourgeois, supra, at 1108. Additionally, even if the technical requirements for dispensing with the natural parent’s consent are met, the primary consideration in adoption proceedings is whether the adoption is in the best interest of the child. In re Miller, 95-1052 (La. App 1st Cir. 12/15/95), 665 So.2d 774, writ denied, 96-0166 (La.2/9/96), 667 So.2d 541. When the court has granted custody to the child’s parent, married to the stepparent petitioner, there is a rebuttable presumption that the adoption is in the best interest of the child. La. Ch.C. art. 1255(B). The trial judge is vested with great discretion in determining whether an adoption is in the best interest of the child and each case must be decided on its own facts. In re Farrar, 635 So.2d 674 (La.App. 3rd Cir.1994); In re EWB, 441 So.2d 478 (La. App. 2nd Cir.1983). The trial court’s discretion is not absolute and a determination of best interest is subject to reversal if the record reveals manifest error in the determination. Farrar, supra; EWB, supra.

In this case, the mother of the child, MRC, opposed the adoption. Thus, it was incumbent upon the petitioner to show by clear and convincing evidence that MRC’s consent was not necessary.

La. Ch.C. art. 1245, dispensing with the necessity of parental consent to an adoption under specified circumstances, provides in pertinent part:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B or C of this Article.
|SC. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

Following a hearing, the juvenile court judge found that both conditions, dispensing with the need for MRC’s consent, had been adequately proven. MRC disputes those findings on appeal. MRC argues that her failure to comply with the court order of support was with just cause and the record contradicts the finding that she did not communicate with her son for a six month period.

MRC was under a court order to pay child support. The record shows that MRC’s last payment of child support, before the filing of the adoption petition, was May 2005. Once it is shown that a parent did not comply with the court order of support, the burden shifts to the parent to prove by a preponderance of the evidence that he or she had just cause for the failure to support the child. State in the Interest of M.L. and P.L., 95-0045 (La.9/5/95), 660 So.2d 830. Just cause is an affirmative defense and the parent bears the burden of proving that he/she had just cause for not paying child support or that the failure to pay child support resulted from circumstances out of his/her control. In re Sevin, 97-1145 (La.App 5th 5/13/98), 712 So.2d 998.

MRC argues that she had just cause for failing to comply with the support order and/or the failure was beyond her control. It is not disputed that MRC’s residence and all her belongings were destroyed by Hurricane Katrina. She argues that, in the past 18 month period following that devastation, she has had difficulty | ^finding and maintaining a place to live as well as caring for the basic needs of herself and her other child, a four year old daughter. Further, her lack of a permanent residence has made it difficult to find and keep a job.

In finding that MRC did not meet her burden of proving by a preponderance of the evidence that she had just cause for failing to pay any child support for 15 months, the juvenile court noted that MRC’s child support obligation, $64.00 per month, was minimal. Yet, MRC failed to make any payments for the three months prior to the hurricane and, even though she suffered a great loss due to the hurricane, she failed to make even a small payment for twelve months thereafter. The court also noted that MRC received $9500 from the Federal Emergency Management Agency (FEMA) in October of 2005 and that she did not forward any of that money to CJM, Sr. and BEM for the support of CJM, Jr.

MRC admits that she did not send any of the FEMA money to CJM, Sr. and BEM for support. She testified that after losing her residence and all her belongings in the hurricane, she needed the money to find housing, and get clothing and food for herself and her daughter. MRC also testified that she sent $2500 to two attorneys to assist her in getting visitation with CJM, Jr. following CJM, Sr.’s refusal to let her see him without a licensed supervisor, which she could not find or afford. In finding MRC lacked just cause for failing to pay her ordered child support, the juvenile court judge noted that it was disputable whether the $2500.00 payment to an attorney was for past services rather than future services. MRC filed her opposition to the adoption in proper person and was without counsel at the hearing.

It was recently noted by this Court in In re A.G.T., 06-0805 (La.App. 5th Cir 3/13/07), 956 So.2d 641, that the devastating effects of the hurricane were severe enough to prompt three Executive Orders by the Governor, extending prescriptive 17periods, and a Legislative Act, extending for one year the time within which insurance claims could be filed. However, we held, in A.G.T., that the executive orders suspending prescriptive periods did not serve to suspend the natural father’s obligation to support his child, thereby preventing the application of La. Ch.C. art. 1245(C)(1). In accord, we find that, while MRC was seriously impacted by the hurricane, it did not provide “just cause” for her failure to make any support payments for 15 months. Thus, we find no error in the finding by the juvenile court judge that MRC failed to comply with a court order of support without just cause for a period of at least six months.

Since only one of the conditions of La. Ch.C. art. 1245(C) needs to be proven to dispense with the consent of a parent to an intrafamily adoption, and we have found the juvenile court was correct in finding that MRC failed to comply with a court order of support without just cause for a period of at least six months, further review of the findings regarding the second condition is unnecessary.

As noted by the juvenile court in the reasons for judgment, even if it is determined, as here, that the biological parent’s consent to the adoption is unnecessary, the court must still consider whether the adoption is in the best interest of the child. In making this determination, the court, in its written reasons stated: “It is clear to this Court from the evidence and testimony presented at the hearing on November 6, 2006, that the intrafamily adoption of C.J.M. Jr. by his stepmother is in the minor’s best interest.” The court provided lengthy reasons supporting that conclusion, and we find them amply supported by the record.

Following the divorce in 1999, CJM, Jr. has had an unstable life with MRC. She was initially granted domiciliary custody of the child but within a few months he was residing with his father. At this time, MRC had a serious drug problem. The court noted that sometimes MRC would fail to pick up CJM, Jr. from after-care | sand, with CJM, Sr. working, BEM would have to go and get him. Days would pass before MRC would even call to check on CJM, Jr. Two years later, in 2001, CJM, Sr., after marrying BEM, was granted, by consent, domiciliary custody. The following year, CJM, Sr. allowed MRC to regain domiciliary custody but within six months she returned CJM, Jr. to his father and BEM.

At this point, CJM, Sr. petitioned the court for custody and requested an evaluation. It was determined that MRC was still engaged in drug use. Although CJM, Sr. also admitted a past drug dependence problem, the evaluator concluded that permanence as a family unit was superior with CJM, Sr. and BEM. Further, there was evidence that MRC was disruptive to the child’s stability by telling him negative things about his father and BEM and telling CJM, Jr. that he was going to come live with her soon. This upset the child and caused him to act out at school. Finally, the court found that BEM was the most stable adult in the child’s life for over the past seven years.

Moreover, under La. Ch.C. art. 1255(B), although rebuttable, the adoption is presumed to be in the best interest of the child. Thus, upon review we find that the record supports the juvenile court finding that the adoption is in the best interest of the child.

MRC argues that the finding that the adoption is in the best interest of CJM, Jr. was inconsistent with other findings of the juvenile court and for that reason should be reversed. In support of this argument, she refers to oral reasons for judgment by the court in which it was noted:

I considered the fact that C[JM, Jr.], does have relationships with both of these families, [BEM]’s family and, of course, his biological family with his Mother. I do appreciate the testimony that he is very close to his sister J., and I take into account that he has a half sister. I also take into account that he is probably very close to his Maternal Grandmother, ..., who testified here today, Rand I have absolutely no doubt that this child is loved tremendously by the mother’s family and by the mother. .... It is the hope of this Court, and [BEM], I hope you listen carefully to this, that you will allow, ... this child to maintain contact with his maternal family. He clearly knows them, he loves them, I think it is in his best interest that he maintains a relationship with them,....

MRC argues that BEM’s plan to relocate CJM, Jr. to Alabama, as provided in the adoption petition, was inconsistent with these instructions by the juvenile court judge.

We find no inconsistency in those remarks requiring reversal of the judgment granting the adoption. The juvenile court judge was merely pointing out the obvious, that a relationship between the child and his mother is important. She was encouraging BEM to allow CJM, Jr. to pursue that relationship if he chose to do so and to facilitate it, while at the same time recognizing that it was still in the child’s best interest to grant the intrafamily adoption. We find that the remarks by the juvenile court judge were not inconsistent with her ruling but were offered as encouragement that the adults involved in CJM, Jr.’s life act in his best interest.

Accordingly, for the reasons stated above, we affirm the judgment of the juvenile court granting the intrafamily adoption of CJM, Jr. by BEM.

AFFIRMED.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the parties involved will be used to protect the minor's identity.

      . MRC argues that it was error for the juvenile court to not appoint an attorney to represent her or CJM, Jr. in these proceedings. While the proceedings are tilled '‘Intrafamily Adoption,” the parent opposing the adoption has his/her parental rights terminated as a result of the adoption. The Children’s Code does not, however, grant the opposing parent or child a right to counsel in intrafamily adoption cases. The United States Supreme Court has not mandated counsel in such cases. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Thus, despite the fact that it has been noted that "[tjhroughout the Children's Code, independent counsel is typically required for the child in disputed cases,” Lucy S. McGough & Kerry Triche, Louisiana Children’s Code Handbook 2006, Authors’ Notes, at 649, we find mandating counsel in intra-family adoption cases is a legislative function. The lack of counsel does not constitute reversible error in this case.