author: MAX N. TOBIAS, JR., Judge.

text:
    Michael MARZIALE v. DEPARTMENT OF POLICE.
    No. 2006-CA-0459.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      Alan B. Tusa, Carol T. Richards, Tusa & Richards, L.L.C., Covington, LA, for Plaintiff/Appellant.
    Penya M. Moses-Fields, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Heather M. Valliant, Assistant City Attorney, James B. Mullaly, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, and Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

[,The appellant, Michael Marziale (“Marziale”), appeals his dismissal from the New Orleans Police Department (hereinafter, “NOPD” or “appointing authority”), which determined that he was either unable or unwilling to perform his duties as a police officer after more than three years of extended medical leave. Marziale was injured in November 2000 while participating in the department’s “Fitness for Duty” program; he sustained an inguinal hernia, a torn rotator cuff, and a lumbosa-cral strain. Marziale contests the assertion that he was unwilling to come back to work or permanently disabled; rather, he contends that his treatment has been hindered by the appointing authority, extending his recuperation time, and that the appointing authority failed to offer him placement in a light duty position although light duty positions existed.

On 13 November 2000, Marziale, a veteran of almost 30 years with the NOPD and a sergeant, was involved in a program administered by the police department called “Fitness for Duty.” The program consisted of push-ups, sit-ups, and carrying 50-pound weights. During the course of the exercises, Marziale complained of pain to his right shoulder, stomach, and groin area. On 15 December 2000, Lawrence Durante, M.D., a physician at Tulane Medical Center, | ^diagnosed Marziale with an inguinal hernia, right shoulder strain, and lumbar strain. Dr. Durante opined that Marziale was “unable to return in any capacity at [that] time” and deferred treatment to a surgeon and an orthopedist.

Subsequently, Marziale treated with C. Edward Foti, M.D., to repair his hernia and with Melvin L. Parnell, Jr., M.D., an orthopedist, for his rotator cuff injury and lumbar strain. As a result, two sets of Form 50s were submitted to the appointing authority regarding Marziale’s treatment.

The first Form 50 completed by Dr. Parnell is dated February 2001. At that time, Dr. Parnell noted that Marziale suffered from a right shoulder strain, rotator cuff tear, and lumbosacral strain and was unable to return to duty in any capacity. Dr. Parnell completed nine additional Form 50s over the next three years. Except for the Form 50s dated 9 May 2002 and 6 January 2003, all of them listed Marziale as “unable to return in any capacity at this time.” The Form 50 dated 1 March 2002 noted that Marziale’s estimated length of time to return to duty was dependent on right shoulder surgery. On 9 May 2002, Dr. Parnell released Marziale to light duty with restrictions, and noted that he had “reached maximum medical improvement without surgery.” He further noted that Marziale could not return to full duty without surgery. Dr. Parnell performed arthroscopic surgery to repair Marziale’s torn rotator cuff on 12 June 2002. On 5 August 2002, Dr. Parnell indicated in a Form 50 that Marziale was not able to return to duty at that time.

| ^Marziale underwent a functional capacity evaluation (“FCE”) on 18 November 2002. The FCE indicated that Marziale was able to work at a “light-medium physical demand level for an 8-hour day.” However, he was not placed in a light duty position by the NOPD.

On 6 January 2003, Dr. Parnell released Marziale to light duty, but for only four hours a day. He recommended in the Form 50 that Marziale increase his work day by one hour daily every two weeks. He further noted that Marziale should “be restricted from working in the field until he reaches maximum medical improvement.” Dr. Parnell estimated that Marz-iale would be able to resume full duty in two months.

Dr. Foti released Marziale to light duty on 9 March 2001, and estimated that he would be able to return to full duty approximately six weeks following surgery to repair the hernia. Dr. Foti performed the surgery on 16 April 2001, and released Marziale to full duty as of 28 April 2001.

The appointing authority issued a termination letter to Marziale on 22 June 2004, detailing the Form 50s that Marziale had submitted to it and noting that he had not presented any evidence to the department that he would ever be able to perform the duties required by his civil service classification. The letter also noted that he had undergone two surgeries thus far in his treatment, the last having taken place more than two years prior to his termination. Further, the letter stated that Marziale had produced no documentation to justify his absence since the submission of a Form 50 dated 17 October 2003. Therefore, the appointing | ¿authority terminated his employment pursuant to Rule IX of the Rules of the City Civil Service Commission (“CCSC”).

Marziale filed an appeal to the CCSC, asserting that his termination was “arbitrary, unreasonable, and without any basis in fact or law to support the conclusion reached and the penalty imposed upon the appellant.” A hearing was scheduled for 12 November 2004.

Sergeant James Crespo (“Sgt. Crespo”) testified at the hearing as the supervisor of the Administrative Duties Division (“ADD”) of the appointing authority. He testified that ADD receives the Form 50s submitted on behalf of the injured police officers, and based upon the limitations placed upon the officers by their physicians, assigns them to limited capacity positions. Sgt. Crespo testified that in order to be transferred to ADD, an officer must have been on medical leave for more than 30 days. The ADD’s “rule of thumb” was to allow the injured officer the opportunity to resume his or her former place of assignment, unless the officer was unable to accept that assignment. If the officer was unable or unwilling to return to his or her former assignment, ADD would attempt to reassign the officer. Sgt. Crespo further explained that an officer was allowed to remain on light duty for one year; after that year was complete, the officer would either be released to full duty, or the Rule IX process would begin.

IsSgt. Crespo described the Form 50s and testified that an officer who was on light duty was required to provide a Form 50 to the department once a month, while an officer on extended medical leave (like Marziale) was required to submit a Form 50 every two months. During the more than three years that Marziale was on medical leave, Sgt. Crespo received several Form 50s.

Sgt. Crespo testified that Marziale came to ADD around the end of 2000, but was never placed on light duty because he was never released by his physician to light duty for more than four hours a day. Sgt. Crespo testified that it was the unwritten policy of the department under then-Assistant Superintendent Dwayne Johnson (“Chief Johnson”) that if an officer were not able to work a full eight-hour day on light duty, he would not be assigned any light duty work. According to Sgt. Cres-po, the department (through ADD) had applied that policy ever since, even though it had never been codified.

Sgt. Crespo was directed to the Form 50 dated 9 May 2002, in which Dr. Parnell released Marziale to light duty and further found that he had reached “maximum medical improvement without surgery.” Crespo testified that although Marziale was released to full time light duty as required for a light duty assignment, Chief Johnson denied his assignment because Marziale was scheduled to undergo surgery in three weeks. Dr. Parnell indicated on the Form 50 that Marziale would not be able to return to full duty without surgery, and Sgt. Crespo explained that Chief Johnson did not want to bring him back for only three weeks.

Sgt. Crespo was questioned about the procedures in place for the coordination of information between ADD and the workers’ compensation administrator for the city, Cannon Cochran Management Services, Inc. (“CCMSI”), regarding an injured officer’s medical status. He testified that ADD |fionly received the Form 50s, while CCMSI received medical records from treating physicians. He admitted that although he might have contacted CCMSI “sometimes” to obtain the updated medical records or status of a particular officer, he did not recall contacting CCMSI regarding Marziale. He testified that ADD had no obligation to remind an officer to submit Form 50s, but admitted that ADD had in the past sent courtesy letters to Marziale reminding him to do so. Sgt. Crespo indicated that because Marziale had been selected as a Rule IX candidate, he did not contact Marziale or CCMSI for updated medical information.

The appointing authority next presented the testimony of Kevin Pierre (“Pierre”), the workers’ compensation supervisor for CCMSI overseeing Marziale’s file. He testified that it was his practice to review all of his case files every 60 days “from scratch” to make sure that they were being kept up-to-date and to track the status of injured officers. He testified that his office had handled Marziale’s file since the date of the accident, and that his office had never received any documentation from a medical provider indicating that Marziale could return to full duty. He also testified that the adjuster on the file (who was no longer employed by CCMSI as of the hearing and was not called to testify) was notified in late 2003 or early 2004 that Marziale was to be the target of a Rule IX action.

Pierre also testified that adjusters at CCMSI were instructed to forward medical records received from treating physicians to Sgt. Crespo at ADD. He testified that CCMSI did not make decisions regarding assignment of officers to light duty work, but that once a determination came in from a physician that an injured officer could perform light duty work, CCMSI would contact ADD to see if it could accommodate the officer with an assignment. He confirmed that ADD had not assigned any part-time light duty work in several years, and it was his ^understanding that this was the policy of the appointing authority. He also testified that if he had received a recommendation from a treating physician that an officer begin light duty work for only four hours a day, with a gradual increase in the workday, he would have forwarded that recommendation to Sgt. Crespo, and he indicated that he had done so regarding Marziale. Pierre testified that regardless of the involvement of CCMSI in the process, the appointing authority made all decisions regarding assignments to light duty work.

At the hearing, Marziale testified that his termination had come as a complete surprise and that he had offered to return to work at his pre-termination hearing. He testified that he was unaware that the appointing authority had not received all of the Form 50s completed by his physician. In fact, at the pre-termination heaping, Marziale attempted to provide the appointing authority with a Form 50 and a report by Dr. Parnell that described a “minimally invasive” back surgery. The Form 50 indicated that Marziale could return to work in approximately three months. The appointing authority refused to accept the documentation at the hearing. Marziale also stated that at the time of the pre-termination hearing, he was waiting to receive an epidural steroid injection for his back that had been ordered by Dr. Parnell, but that CCMSI had not approved the procedure. CCMSI subsequently approved the injection following his termination.

Marziale testified that CCMSI had been slow to approve his treatment in other areas, as well. His physical therapy regimen was interrupted more than once because of delayed approval of treatment by CCMSI. Also, he testified that _j^treatment for his hernia had been delayed several months, and that his condition worsened during that time.

Marziale testified that he reported to ADD in person approximately every two weeks to pick up his check. On those occasions, he asked if ADD needed any documentation from him, and was told no. He also recalled speaking to Sgt. Crespo on these visits. He stated that he had never been given any indication that ADD was missing any Form 50s until he received the pre-termination letter.

Marziale testified that he had made several attempts to find light duty work with the department. He had been advised to find a department in which he could work, and he recalled that he spoke to Captain James Howley (“Captain Howley”) regarding placement in his department, Technical Services. Marziale testified that he had worked in Technical Services in the past, and that he and Howley had thought it would be a good fit. He also testified that he had approached another officer regarding working in employee relations, but that ADD had never offered him any assignment while he was on medical leave. Following Marziale’s testimony, the hearing adjourned until January 2005.

On 12 January 2005, at the continuation of the hearing, Marziale presented the testimony of Captain Howley. As a captain in Technical Services, he headed up the division in charge of building security, roll-in stock, the supply room, and the print shop. Captain Howley testified that he had had several light duty positions available in technical services in the time since Marziale had been injured, and that it was not unheard of for an officer on light duty to work only four-hour days, if only temporarily. He confirmed the policy of the appointing authority to reassign officers to the division of their last assignment (which for Marziale would have been the Second District), but he also noted that it was 19entirely within the superintendent’s discretion to reassign an injured officer, and that he knew of no formal rule preventing him from assigning Marziale to Technical Services. Captain Howley testified that he had been short-handed over the past few years and that he could have used Marziale in the print shop performing light duty work.

On 2 May 2005, the hearing examiner issued a report concluding that Marziale’s appeal should be denied on the grounds that the appointing authority established by a preponderance of the evidence that it terminated Marziale for cause. The examiner noted that it was not clear' if Marziale would ever be able to return to the department, and further noted that Marziale could have postponed his retirement and returned to work even after the appointing authority had terminated him, but did not do so. The examiner reasoned that after allowing Marziale to remain on medical leave for almost four years, the appointing authority was “justified in making a determination as to the Appellant’s ability to work in a full capacity.” Marziale appealed his decision to the CCSC.

The CCSC issued an opinion dated 12 August 2005 denying Marziale’s appeal. In its opinion, the CCSC found that Marz-iale never provided a Form 50 that released him to full duty, or a Form 50 that released him to limited duty with an estimated return to full duty. It further noted that Marziale testified at the hearing that he could work in a limited capacity position, but could not provide a date when he could return to full duty.

ImMarziale appealed the decision of the CCSC, and assigned seven errors. First, Marziale asserts that the appointing authority did not meet its burden of proof at the hearing and the CCSC did not decide the case from the facts presented. Second, he asserts that the penalty imposed by appointing authority was not commensurate with the complained-of dereliction. Third, Marziale maintains that the reasons cited for his termination by the appointing authority are without basis in fact, and his termination violated Rule IX. Fourth, the appointing authority “fabricated rules” to prevent him from returning to light duty work, which constituted a violation of his due process rights. Fifth, Rule IX was improperly invoked because his physician cleared Marziale to work. Sixth, CCMSI delayed approval of recommended medical procedures, which prevented Marziale’s rehabilitation and return to full duty. Finally, Marziale asserts that the hearing officer committed manifest error by engaging in advocacy prejudicial to Marziale, preventing him from receiving a “reasonable hearing.”

An employee with permanent status in the classified city service may only be terminated, or otherwise subjected to disciplinary action, in writing and for good cause. La. Const, art. X, § 8(A); Walters v. Dept of Police of New Orleans, 454 So.2d 106, 113 (La.1984). Good “cause” for the dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its effi-eient operation. Id. The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained-of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990).

InThe burden of proof on appeal to the CCSC shall be on the appointing authority. Walters v. Dept, of Police of New Orleans, 454 So.2d at 112-113. The decision of the CCSC is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12(B); Walters, 454 So.2d at 114. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the CCSC’s order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision by the CCSC is “arbitrary or capricious” if there is no rational basis for the action taken by the CCSC. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

First, we examine whether the appointing authority met its burden at the hearing before the CCSC. In order to prevail at the hearing, the appointing authority had to establish by a preponderance of the evidence that Marziale was either unwilling or unable to perform his duties as a police officer, or that he had failed to submit documentation “justifying his absence,” insofar as that was the stated reason for his termination. We find that the appointing authority failed to meet its burden of persuasion.

Marziale has never stated or admitted that he was unwilling to return to work. In fact, a review of the recording of the pre-termination hearing reveals that Marz-iale offered to come back to work. There is no evidence in the record, and the appointing authority does not assert, that it ever offered Marziale a light duty position that he refused. In fact, the record reflects that even when Marziale’s physicians released him to light duty work, it was the appointing authority that |iamade the decision to not offer a position to Marziale. Coupled with the testimony presented by Marziale that such positions existed within the department, the appointing authority’s failure to attempt to accommodate Marz-iale seems to be the real reason Marziale has never returned to work. We note that the appointing authority never requested an independent medical evaluation, and did not present any medical testimony at the hearing that Marziale was permanently disabled or would not be able to resume his duties at some time in the future.

The appointing authority directs us to Wilson v. New Orleans Police Department, 00-2484 (La.App. 4 Cir. 12/19/01), 804 So.2d 838, in which this court affirmed the termination of a police officer who was injured on duty and who never returned to full duty. Although we found that the appointing authority had put forth ample evidence concerning its policy of terminating officers who required more than temporary limited duty, the Wilson case is distinguishable from the case sub judice because Wilson had been deemed unable to ever return to full duty by his physician. There has never been a medical determination that Marziale’s injuries would prevent him from returning to full duty in the future.

In Childress v. Department of Police, 487 So.2d 590 (La.App. 4 Cir.1986), this court held that the CCSC abused its discretion in upholding the termination of an officer who had been injured on duty, and whose psychiatrist would not release her to full duty without a “desensitization program” that would have to be administered by the appointing authority. The appointing authority interpreted the recommendation of the psychiatrist to mean that Childress was permanently disabled. However, this court noted that her psychiatrist also opined that with cooperation from the appointing authority in her recovery, she would be able to resume full duty without restrictions. We held that:

|1S... to conclude that it was better to dismiss appellant than to afford her the minimal cooperation which was requested in order to facilitate her probable complete rehabilitation was an abuse of discretion.

Id. at 592.

Similarly, we find that the obstacles Marziale faced in getting his medical treatment approved by CCMSI at the very least delayed his recovery. Further, Dr. Parnell’s recommendation that Marziale begin working 4-hour days, then gradually increasing his workday, was reasonable. The appointing authority’s refusal to accommodate him so that he could return to work was an abuse of discretion. Further, the CCSC was clearly wrong in finding that the appointing authority had carried its burden of proof at the hearing of Marz-iale’s appeal.

We recognize that the appointing authority has a legitimate need to maintain a fully staffed and able-bodied police department. Wilson, 00-2484 at p. 10, 804 So.2d at 844. However, we are troubled that the appointing authority did not take the steps to determine or establish that Marziale would not be able to resume his duties after successful treatment of his ailments. Further, it was established by a preponderance of the evidence that light duty positions existed in the print shop. The use of unwritten rules to disqualify Marz-iale from light duty work that existed is also troubling and flies in the face of the purpose of the civil service rules: to protect civil service employees from arbitrary or discriminatory disciplinary action and to promote a system based on “merit principles and scientific methods.” La. R.S. 42:721. See also Sanders v. Department of Health & Human Resources, 388 So.2d 768, 771 (La.1980).

Because we find that the appointing authority did not meet its burden of proof at the civil service hearing that Marziale would not be able to return to full [Uduty, and further that the CCSC was manifestly erroneous in finding that it had, we preter-mit discussion of the remaining assignments of error. For the foregoing reasons, we reverse the decision of the CCSC and order that Marziale be reinstated.

REVERSED.

      . A Form 50 is a one-page form completed by an injured officer’s treating physician detailing his condition and prognosis. The form allows the physician to choose from four options: 1) able to return to full duty; 2) will never be able to return to full duty as a police officer; 3) unable to return in any capacity at this time (INCLUDING EXTENSIVE LIGHT DUTY PROGRAM); or 4) able to return to Limited Duty with the following restrictions: .... (Emphasis in original.) The form also requires the physician to estimate the length of time until the officer can return to either limited or full duty.

      . Rule IX of the CCSC Rules states in pertinent part:
      When an employee in the classified service is unable or unwilling to perform the duties of his/her position in a satisfactory manner, or has committed any act to the prejudice of the service, or has omitted to perform an act it was his/her duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standard of effective service. The actions may include one or more of the following: 1) removal from service....

      . In fact, the record reflects that CCMSI received Dr. Parnell's report with Marziale’s estimated return to full duty on 4 June 2004, several days prior to the pre-termination hearing.

      . The copy of the CCSC opinion contained in the record appeared to be signed with “rubber stamp” signatures of the CCSC members, which was confirmed to represent the signatures of the commissioner issuing the decision. The opinion in the record is nonetheless marked as an “original.” We note the importance of maintaining the integrity of the record on appeal, and urge the CCSC to supply at the very least certified copies of its opinions for the record.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Kathi BROOKS, Individually and on Behalf of her Minor Daughter, Nicole Bendily v. CITY OF JENNINGS, Jennings Police Chief Merrion S. Taylor, Lt. D. Daigle 231, PTN. C. Romero 538 and Det. K. Clement 423.
    No. 06-680.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 22, 2006.

      Joseph F. Gaar Jr., Jason M. Welborn, Attorneys at Law, Lafayette, LA, for Plaintiff/Appellant, Nicole Bendily.

      John F. Wilkes, Lisa E. Mayer, Joy C. Rabalais, Libby Heinen, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Ap-pellees, City of Jennings, Chief Merrion S. Taylor, Lt. Damon Daigle, Det. Keith Clement, Officer Chad Romero.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

LThe plaintiff, Nicole Bendily, appeals the granting of a motion for summary judgment filed by the defendants, the City of Jennings; Chief Merrion S. Taylor, in his official capacity as Chief of Police for the City of Jennings; and Detective Keith Clement, Lieutenant (Lt.) Damon Daigle, and Officer Chad Romero, all in their official capacities as police officers for the City of Jennings (collectively, the defendants). Pursuant to the granting of the defendants’ motion, the plaintiffs suit was dismissed with prejudice, at her costs. This appeal followed.

FACTS

The facts in this case are not in dispute. In the early morning hours of December 9, 2003, officers from the City of Jennings Police Department engaged in a high-speed chase of the plaintiff, Nicole Bendily. The chase ended when the plaintiff lost control of her vehicle. The vehicle left the roadway and rolled over. The plaintiff was ejected and sustained serious injuries.

Subsequently, suit was filed by the plaintiff seeking damages for injuries sustained. In due course, the defendants filed a motion for summary judgment which was granted by the trial court. The plaintiff, then, filed this appeal. We affirm the judgment of the trial court.

LAW AND DISCUSSION

The law applicable to the appellate review of summary judgments is well settled.

LThe summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App.2d Cir. 03/31/99), 731 So.2d 482. The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir. 01/21/98), 707 So.2d 459. The burden of proof remains with the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then that party need not negate all essential elements of the adverse party’s claim, action, or defense but may simply 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 produce factual support sufficient to establish that it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. See, La. C.C.P. art. 966(C)(2). When a motion is made and supported, as required by La. C.C.P. art. 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.
Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir. 05/10/00), 760 So.2d 587.

Semien v. EADS Aeroframe Servs., LLC, 04-760, pp. 1-2 (La.App. 3 Cir. 2/2/05), 893 So.2d 215, 216-17 (quoting Sidwell v. Horseshoe Entm’t Ltd. P’ship, 35,718, pp. 2-4 (La.App. 2 Cir. 2/27/02), 811 So.2d 229, 230-31).

The record reveals that at 6:30 a.m., Mrs. Kathi Brooks, the mother of plaintiff, Nicole Bendily, called the Jennings Police Department and reported that “my daughter took my car.” When asked to clarify what she meant by the phrase “my daughter took my car,” Mrs. Brooks stated “she stole my car.” At the time Mrs. Brooks made the call she was in a vehicle following Nicole and called to request | «police intervention to stop Nicole. Mrs. Brooks explained that Nicole was due to leave with the family that morning to begin drug “rehab,” but that she didn’t want to go, so she took the car and drove off. Mrs. Brooks and another party followed in a second vehicle. Nicole’s father got into a third vehicle to begin a search for Nicole. A Jennings Police Department (the P.D.) unit, driven by Patrolman (Ptn.) Chad Romero, was dispatched to the last place Nicole had been seen and started a search for Nicole. Lt. Damon Daigle, who took the initial call from Mrs. Brooks, left the station to join the hunt.

At 6:50 a.m., Mrs. Brooks, who was in a Grand AM, again called the P.D. and reported that she had spotted Nicole heading south on South Main Street. Mrs. Brooks followed her as Nicole turned east on Park Street and then north on South Cutting Street. At that time, Lt. Daigle was proceeding south on South Cutting Street. He spotted Nicole and fell in behind her, activating his emergency lights and siren. Nicole accelerated, turned east on U.S. Highway 90 and then north on South Louise Street. Lt. Daigle, who was in pursuit, estimated Nicole’s speed to be in excess of 60 m.p.h. By this time, Ptn. Romero had fallen in behind Lt. Daigle. Wfiien asked about Nicole’s ability to handle her vehicle at high speed, Lt. Daigle stated that “[s]he was fairly good.” When pressed on the issue he said: “She actually showed remarkable handling of a vehicle that heavy [Nicole was driving a Toyota Avalon].” The pursuit continued north on South Louise, then west on East Nezpique, north again on Ruland, then west on East Academy, south again on North Morton Street, and west on Granger, back toward U.S. 90. She then turn north on Market to East Main, then west on East Academy toward La. Hwy. 26 (South Lake Arthur Road). She crossed Hwy. 26, then turned south on North Doyle Street. At that point, because Nicole’s speed Lhad increased to near 100 m.p.h. and because she was running “STOP” signs, Lt. Daigle terminated pursuit and they lost sight of Nicole’s vehicle. This was at approximately 6:56 a.m.

. Mrs. Brooks called the P.D. again at 6:57 am to report that her husband was in pursuit of Nicole, heading south on the Lake Arthur Highway (La. Hwy. 26) at over 100 m.p.h. About two minutes later, Patrolman Romero reported that he had Nicole’s vehicle in sight headed north on La. Hwy. 26, just south of La. Hwy. 1126, and that he was re-initiating pursuit. Nicole turned east on La. Hwy. 1126. As Nicole approached Castex Landing Road, she lost control of the vehicle and was ejected as the vehicle rolled over.

Several times on the voice log, one can hear Lt. Daigle warning his officers to be careful and to “back off’ if the situation became too dangerous. One can also hear a comment to the effect that Nicole was having trouble handling her vehicle. At several places one can hear pursuing officers reporting they did “back off’ when they felt the situation warranted more caution.

The linchpin of this case can be found in the provisions of La.R.S. 32:24:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
|s(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D.The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

The defendants rely on Sections A, B, and C of the statute to exonerate them from liability, while the plaintiff claims the defendants are liable under Section D of the statute. The plaintiff also argues the defendants should be held liable for their failure to strictly adhere to Jennings Police Department policy governing pursuit.

In Lenard v. Dilley, 01-1522, pp. 6-7 (La.1/15/02), 805 So.2d 175, 180, the supreme court concluded that La.R.S. 32:24 contains two alternate standards of care for use in deciding the fault or lack thereof of drivers of emergency vehicles:

La.Rev.Stat. 32:24(D) sets out two standards of care for an emergency vehicle driver depending on the circumstances of the case. If, and only if, an emergency vehicle driver’s actions fit into subsections A, B and C of La.Rev. Stat. 32:24, will an emergency vehicle driver be held liable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver’s conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver’s actions will be gauged by a standard of “due care.”
“Due care” is synonymous with ordinary negligence. “Reckless disregard,” however, connotes conduct more severe than negligent behavior. “Reckless disregard” is, in effect, “gross negligence.” Gross negligence has been defined by this court as “the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise.” State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942). “Reckless disregard” or “gross negligence” is the standard to be applied if the emergency vehicle driver’s actions fit La.Rev.Stat. 32:24(A) through La. Rev.Stat. 32:24(C). Otherwise, the standard is ordinary negligence.
| fiThus, if the provisions of subsections A, B and C of La.Rev.Stat. 32:24 apply to the accident or incident in question, then the driver will be held liable only for his conduct which constitutes reckless disregard for the safety of others.

In the case sub judice, the actions of the Jennings Police Officers clearly fell under subsections A, B, and C of La.R.S. 32:24. One can clearly hear their sirens on the CD of the radio log and the testimony in the officers’ depositions confirms that the pursuing units were using their lights and sirens. Thus the actions of the officers in this case must be judged under the “reckless disregard” or “gross negligence” standard.

The plaintiff argues that, even under “reckless disregard” or “gross negligence” standard, the officers should be found liable for their failure to strictly adhere to department policy governing pursuit. The courts disagree. In determining whether an officer breached his duty to a particular plaintiff, the issue to be decided is not whether the office failed to comply with department policy, but rather was the course of action he pursued reasonable under the totality of the circumstances. Courville v. City of Lake Charles, 98-73 (La.App. 3 Cir. 10/28/98), 720 So.2d 789; Jones v. Congemi, 01-1345, 02-148, 02-149 (La.App. 5 Cir. 5/13/03), 848 So.2d 41, writ denied, 03-1647 (La.10/10/03), 855 So.2d 354.

Police officers have the duty of maintaining peace and order, preventing and detecting crime, and enforcing laws. Zeagler v. Town of Jena, 556 So.2d 978 (La.App. 3 Cir.), writ denied, 560 So.2d 14 (La.1990). The duty is owed to the public in general but may be transformed into a duty to an individual where a personal or individual relationship arises between the officer and an individual through closeness in proximity or time. Id. Generally, a police officer, in carrying out his authority to enforce laws, has the duty to act reasonably to protect life and limb, to refrain from causing injury or harm, and to exercise respect and concern for the well-being of those whom he is employed to protect. Keller v. City of Plaquemine, 96-1933 (La.App. 1 Cir. 9/23/97) 700 So.2d 1285, writ denied, 97-2635 (La.1/16/98), 706 So.2d 977. The supreme court has addressed the duty owed by an 17officer when approaching a subject prior to disarming him or effectuating an arrest. See Stroik [v. Ponseti, 96-2897 (La.9/9/97) ], 699 So.2d 1072; Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94); 646 So.2d 318; Kyle v. City of New Orleans, 353 So.2d 969 (La.1977). In such cases, the duty is one of reasonableness under the totality of the circumstances. See id. We note that Stroik, Mathieu, and Kyle involved the issue of excessiveness of force, and we find the pursuit issue sufficiently analogous to allow application of the standard employed in those cases. In White v. City of Baker, 95-2009 (La. App. 1 Cir. 5/17/96), 676 So.2d 121, writ denied, 96-1547 (La.9/27/96); 679 So.2d 1351, the first circuit held that the same standard was applicable in a situation in which an officer was attempting to apprehend an individual who disobeyed a police order and was fleeing from the officer, which ended with the fleeing vehicle overturning and killing a guest passenger. In any event, the same standard of reasonableness should apply, albeit with the application of different factors [in different situations]. Thus, we will analyze the duty issue in terms of reasonableness under the totality of the circumstances. We note that the officer’s actions need not be the “best” method of approach; rather, the standard of care requires choosing only a course of action that is reasonable under the circumstances. See Mathieu, 646 So.2d 318.

Courville, 720 So.2d at 797-98.

In the ease before us, one finds an impaired teenager driving recklessly, at excessive speeds through the City of Jennings. She is not only being pursued by the police, but also by both her mother and father, in separate vehicles. It was simply a matter of time until someone got hurt. Fortunately, no one was killed and no innocent bystander sustained injury. Considering the totality of the circumstances, we find the police involved in the pursuit used great restraint and that their conduct was neither reckless nor grossly negligent. If anything, their actions reflected due care for the safety of the citizens of Jennings and the parties involved in the pursuit. The officers discontinued the chase at one point and “backed-off’ at other points when the situation became too dangerous. The last place they backed off was at the junction of La. Highways 102 and 1126, just seconds before the crash.

IsWhen Ms. Bendily left the Jennings city limits headed south toward Lake Arthur on La. Highway 26, no police were in pursuit. It was her father who was chasing her at speeds estimated to be in excess of 100 m.p.h. The Jennings police department did not re-join the pursuit until 6:59 a.m. when she was spotted at the junction of La. Highways 26 and 1126. The crash occurred approximately two minutes later on La. Highway 1126 at Castex Landing Road

In sum, we conclude that although the officers may not have followed the best course of action, that, under the circumstances, the course of action followed was reasonable. Furthermore, we find the plaintiff has failed to set forth any specific facts showing a genuine issue of material fact for trial.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.

      . The petition was originally filed by the "plaintiff, Kathi Brooks, individually, and on behalf of her minor daughter, Nicole Bendily, a person of the full age of majority " seeking damages (emphasis ours). In January 2005, the plaintiffs noticed their mistake and Nicole Bendily was substituted as the sole plaintiff.


author: COOKS, Judge.

text:
    Blaine STROTHER, et al. v. CONTINENTAL CASUALTY INS., CO., et al.
    No. 05-1094.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 22, 2006.

      Aaron J. Allen, Andre’ F. Toce, Lafayette, Louisiana, for Plaintiff/Appellant, Blaine Strother.
    Bruce D. Beach, Ungarino & Eckert, L.L.C., Lafayette, Louisiana, for Defendants/Appellees, Continental Casualty Company, Southern Foods Group, Inc., Foremost Dairy and Freddie Lynn Fair.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   COOKS, Judge.

^STATEMENT OF THE FACTS

On January 16, 2001, Blaine Strother and his wife, Connie, were traveling northbound on U.S. Hwy 165, a four-lane divided highway in Oakdale. Although it was midmorning, the sky was dark and it was raining heavily. Freddie Lynn Fair, an employee of Foremost Dairies, Inc. was driving the company truck. The truck is approximately twenty-seven feet long. He was stopped at a stop sign on Jackson Street at the intersection of U.S. Hwy 165 waiting for traffic to clear before crossing the highway to make a delivery to a Circle K convenience store on the other side. Mr. Fair proceeded across the northbound lanes intending to stop in the median between the lanes to wait for southbound traffic to clear before proceeding across to the Circle K. Just as he reached the median and stopped, the Strother vehicle struck the side of the twenty-seven foot truck which was extended into the Stroth-ers’ northbound lane. The Strothers sued Freddie Fair, Foremost Dairies, Inc., and/or Southern Food Groups, Inc., and its insurer Continental Casualty Company. The matter was tried before a jury. The jury found Mr. Fair 100% at fault in causing the accident and awarded Blaine

Strother the following:

a. Physical Pain and Suffering (past, present, future) $ 15,000
b. Mental Pain and Suffering (past, present, future) $ 20,000
c. Physical Injury or Disability $ 37,000
d. Past Medical Expenses $44,986.75
e. Future Medical Expenses $ -0-
f. Loss of Enjoyment of Life $ 72,000
g. Past Lost Wages $ 60,000
Lh. Future Lost Wages/Loss of
Earning Capacity $ -0-

Both parties have appealed. Mr. Strother appeals asserting the jury erred in failing to award adequate past lost wages, future medical expenses and future loss of wages and fringe benefits. Foremost Dairies appeals asserting the trial court’s jury instruction regarding the standard of care of a left-turning motorist was given in error and led the jury to conclude Mr. Fair was 100% at fault. The Defendants contend a substantial portion of the fault should be allocated to Mr. Strother. Foremost Dairies also contends the jury correctly concluded Mr. Strother was not entitled to future medical care or future lost wages. For the reasons assigned below, we affirm the judgment of the trial court.

LAW AND DISCUSSION

A. Jury Instructions and Allocation of Fault

The trial court gave the following-charge to the jury:

A left turning motorist must yield to oncoming or overtaking traffic and a collision involving a left turning motorist gives rise to a presumption of fault on his part.

Foremost Dairies asserts the accident did not happen while Mr. Fair was making a left turn and, therefore, this charge was given in error and led the jury to conclude that Mr. Fair was 100% at fault. The jury was presented with a detailed diagram of the accident in addition to the testimony of Mr. Fair. He testified he was stopped in the middle lane, glanced over his left shoulder and saw the Strother vehicle ten feet from the truck. Mr. Fair was ticketed for failure to yield and accepted a reprimand from his employer in which he admitted the accident was “totally avoidable and was due to the inattentiveness of the driver.” We find the jury had ample evidence to conclude the accident was caused solely by the fault of Mr. Fair by darting across two lanes of traffic and stopping in the middle lane with the back | ¡¡end of his truck obstructing the northbound lane of Mr. Strother. We find this assignment of error without merit.

B. Future medical expenses, future loss wages and fringe benefits

The Plaintiff contends the jury awarded substantial damages for loss of enjoyment of life, physical and mental pain and suffering and physical injury, yet did not award future medical expenses. On part “c” of the jury verdict form, entitled “Physical Injury or Disability Suffered,” the jury placed an “X” over the word “Disability,” apparently concluding although Mr. Strother suffered physical injury as a result of the accident, he did not suffer any accident-related permanent disability which would require continued medical care.

Mr. Strother asserts the jury erred and the medical evidence supports an award of future medical expenses in the amount of $801,521. Also, the Plaintiff asserts he is permanently disabled from engaging in any oilfield work and with a work-life expectancy of 33.5 years, his loss of future earnings and fringe benefits amounts to $885,355. Plaintiffs assertions rest primarily on the medical testimony of Dr. Scott Gammel, a physical rehabilitation specialist. We have reviewed the record and find, other than the testimony of Dr. Gammel, none of Mr. Strother’s treating orthopedic surgeons (Dr. Raffai, Dr. Mul-downy or Dr. Heard) supports the Plaintiffs position as to the need or extent of future medical care.

The record indicates immediately following the accident, Mr. Strothers was taken to Oakdale Community Hospital and was treated by the attending emergency room physician. On January 24, 2001, he saw an orthopedic surgeon, Dr. Elmer |fiRaffai. Dr. Raffai found tenderness at the L5-S1 level and diagnosed a lumbar strain. He recommended physical therapy, anti-inflammatory medicine, and a muscle relaxer.

In February 2001, Mr. Strother consulted Dr. David Muldowny, another orthopedic surgeon. Dr. Muldowny diagnosed a cervical and lumbar strain. He continued to see Mr. Strother about once a month in March and April of 2001 and, at the same time, Mr. Strother was undergoing physical therapy in Oakdale. During this time, Dr. Muldowny testified he did not feel Mr. Strother was able to return to work. However, on May 3, 2001, approximately four months after the accident, Dr. Mul-downy released Mr. Strother to return to his employment doing oilfield work.

On May 14, 2001, prior to returning to work, Mr. Strother was examined by Dr. James Trahan. Dr. Trahan testified, “I make him do a lot of things. He had to bend over and touch is toes, ... and if they’re having pain, you’ll know, you know, you’re going to catch the face expression .... ”

Plaintiff was then required to perform the WorkSteps Protocol at Thomas J. Landry and Associates, under the supervision of a physical therapist, Katherine Marco-wich. Ms. Marcowich testified that Mr. Strothers’ performance during the Work-Steps evaluation either met or exceeded all requirements for re-employment at his former position as an oilfield deck hand. The medical history form completed on May 14, 2001, indicated Mr. Strother had a four month history of lumbar pain which had resolved. The form indicated the following: “No complaint of pain or discomfort at present.”

When Mr. Strother returned to Dr. Mul-downy with complaints of back soreness, Dr. Muldowny recommended an MRI which was performed on October 24, 2001. Dr. Muldowny reviewed the MRI and stated, as follows, “So it’s either a disc protrusion or an osteophyte. You can’t really tell. It’s sometimes hard. My ^interpretation of the MRI was there really wasn’t a whole lot there either way, whether you call it spur or osteophyte, it’s not much either way. I didn’t think it was really a problem.” Dr. Muldowny did not recommend surgery. On March 1, 2002, Mr. Strother was discharged from the physical therapy clinic.

On April 17, 2002, Mr. Strother was climbing a ladder at work. When he had ascended several rungs he slipped and fell backwards onto his extended right arm. He was seen and treated by the company physician two days later. Dr. Muldowny’s progress notes of May 13, 2002, states “lumbar strain doing well.” Dr. Muldow-ny saw Mr. Strother for the last time on September 26, 2002 and performed a physical exam. Dr. Muldowny did not find any limitation in his range of motion but noted Mr. Strother was complaining of back tenderness. At this time, Dr. Muldowny recommended a lumbar epidural steroid injection (LESI). However, Dr. Muldowny testified with regard to LESI: “[I]t’s not really my first choice of what to do on people who are having mostly back pain because it works better for leg pain. But there gets to a point in the treatment of people where we start doing things that less than a 100% success just in an effort to try to get them some relief.” Dr. Mul-downy referred Mr. Strother to Dr. Scott Gammel, an anesthesiologist and chronic pain management specialist, for a LESI.

Dr. Gammel saw Mr. Strother for the first time on October 25, 2002. Based on Dr. Gammel’s review of the MRI, he opined Mr. Strother had internal disc degradation, which as explained by Dr. Gam-mel was “just a fancy way of saying that there was damage to the disc internally. Over time that expressed itself as the disc protrusion that was noted about ten months later on the MRI. It was the final expression of his internal degradation.” Dr. Gammel testified the automobile accident caused the internal disc derangement and when Mr. Strother continued to perform |smanual labor in the oilfield the compression lead to a disc protrusion. He stated Mr. Strother would require continued LESI for the rest of his life three to four times a year. However, Dr. Gammel also testified that the fall from the ladder, which occurred in April 2002, could have been a significant compressive force on the disc causing it to become symptomatic. Additionally, Dr. Gammel stated he did not write any pain medication for Mr. Strother, but deferred to Dr. Heard, the orthopedic surgeon currently treating Mr. Strother. His office notes stated, “I explained to him [Mr. Strother] that since Dr. Heard was prescribing his pain medication, that I could not prescribe any other controlled substance medication, that he would ask Dr. Heard for any other pain management medications. We will otherwise try to get him scheduled as soon as possible for the diagnostic injections.”

On November 18, 2002, approximately two years from the date of the automobile accident, Mr. Strother consulted a third orthopedic surgeon, Dr. Michael Heard. Dr. Heard stated the spondylitic spur or osteophyte, evident on the MRI, pre-exist-ed the accident, but became symptomatic and was causing intermittent pain. With regard to whether Mr. Strother would experience future pain, Dr. Heard opined, “It’s hard to say exactly how long he’s going to have pain in the future, but we do know that the majority of people who have minor back injuries where it’s just limited to soft tissue injury, these people should be pain free and asymptomatic, the majority of them within two to three months.” Although he admitted Mr. Strother’s injury was a “little bit more than that,” he did not recommended surgery and would prescribe anti-inflammatory and non-narcotic pain medications. Mr. Strother’s last visit with Dr. Heard was May 2003.

A jury’s findings of fact are reviewed under the manifest error standard of review. Powell v. Regional Transit Authority, 96-715 (La.6/18/97), 695 So.2d 1326. When a jury fails to award any element of future damages, a reviewing court may conclude that the jury found the plaintiffs pain, suffering, impairment and economic losses did not extend past the date of trial. Basco v. Liberty Mut. Ins. Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660.

We have reviewed the medical evidence and find no inconsistency in the jury’s verdict. Dr. Muldowny, the treating orthopedic surgeon, diagnosed a cervical and lumbar strain due to the accident. He treated Mr. Strother conservatively with medication and physical therapy. Mr. Strother returned to his former employment performing manual labor four months after the accident. When Mr. Strother continued to complain of back pain, an MRI was ordered by Dr. Muldow-ny. Despite Mr. Strother’s subjective complaints of pain, Dr. Muldowny testified the MRI indicated “there really wasn’t a whole lot there either way.... I didn’t think it was really a problem.” Dr. Mul-downy’s finding was supported by the testimony of Dr. Michael Heard. Neither orthopedic surgeon recommended future surgery or the necessity for lumbar epidural steroid injections on a regular basis. The jury had ample medical evidence to conclude any back problems related to the accident resolved prior to trial and any lingering back pain which lead to a referral to Dr. Gammel could have been caused by his fall from a ladder. We find no error in the jury award.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to Blaine Strother.

AFFIRMED.

      . Plaintiff contends that he will require lumbar epidural steroid injections (LESI) three to four times a year for the rest of his life for a total of $211,342. Since Mr. Strother was twenty-five at the time of the accident, his life expectancy is 50.13 years. In addition, Plaintiff contends Dr. Gammel recommended radio frequency neuroblation (RFN) to treat median branch nerve pain for the rest of his life for a total of $242,758. Plaintiff contends a lifetime of physician visits and oral medication would cost approximately $141,227.


text:
    STATE of Louisiana v. Donald O’CONNOR.
    No. KA 06-262.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 29, 2006.

      John F. DeRosier, District Attorney, Sharon Darville Wilson, Carla S. Sigler, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    James E. Boren, Baton Rouge, LA, for Defendant-Appellant, Donald O’Connor.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and MARC T. AMY, Judges.
   COOKS, Judge.

hThe Defendant, Donald O’Connor was in business with Robert Trost. As a part of their business relationship, Defendant and Trost entered into a non-compete agreement with Trost. According to Trost, Defendant violated that agreement, so he filed a civil lawsuit against him. A preliminary injunction based on the non-compete agreement between the parties was issued in that proceeding. The parties consented to its issuance on August 1, 2003.

On October 3, 2003, Trost filed a motion for contempt alleging Defendant failed to abide by the preliminary injunction. In a civil proceeding titled Robert Trost, Sr. v. Donald O’Connor, Docket No. 03-3741, Judge David Painter held Defendant in contempt of court for violating the terms of the preliminary injunction. He was sentenced to serve twelve months in the parish jail, with all but 25 days suspended, to pay a fine of one thousand dollars, and he was placed on probation until July 7, 2005.

On September 29, 2003, Defendant was charged with committing one count of theft over five hundred dollars, in violation of La.R.S. 14:67, in Docket No. 18721-03. On May 16, 2005, he filed a Motion to Quash, urging double jeopardy predicated on the assertion that the September 29, 2003 bill of information charged him with the same conduct for which he had been punished in the contempt proceeding referenced above. Judge Michael Canaday subsequently denied the Motion to Quash.

From the denial of this motion, Defendant filed an appeal with this court, which was initially converted to a writ. A panel of this court subsequently determined the writ conversion had been improvidently issued; and the matter was again converted to an appeal.

_[¿)OUBLE JEOPARDY

Defendant argues the trial court erred in denying his Motion to Quash based on double jeopardy. Defendant contends he has already been punished for the behavior for which he is currently on trial, i.e, the cashing of four checks received from customers. He argues the present prosecution for theft from the same victims constitutes double jeopardy. He points out the alleged conversion of the at issue checks pre-dated the issuance of the injunction, and the facts surrounding the taking of the checks were admitted as evidence in the contempt proceeding. Thus, he contends the present prosecution for theft predicated on these same checks violates the “same evidence rule.”

This court’s latest pronouncement on double jeopardy is found in State v. Cogswell, 05-510, pp. 3-4 (La.App. 3 Cir. 12/30/05), 918 So.2d 590, 593-94, writ denied, 06-314 (La.9/1/06), 936 So.2d 196:

In State v. Knowles, 392 So.2d 651, 654 (La.1980), the Court citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), outlined the following criteria for examining violations of double jeopardy:
“... The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not....”

This rule is constitutionally required by the States. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and is embodied in La.C.Cr.P. 596:

“Double jeopardy exists in a second trial only when the charge in that trial is: (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or (2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

|sLouisiana uses both the “Blockburger test” and the “same evidence test”. State v. Steele, 387 So.2d 1175 (La.1980); State v. Doughty, 379 So.2d 1088 (La.1980); State v. Didier, 262 La. 364, 263 So.2d 322 (1972) and, 412 So.2d 1323 (La.1982). When a defendant is charged with separate statutory crimes they need not be identical in elements or in actual proof to be the same within the meaning of the constitutional prohibition. State v. Hayes, 412 So.2d at 1325.

The Louisiana Supreme Court explains the “same evidence” test in State v. Steele, 387 So.2d 1175, (La.1980), as follows:

“If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial....
The ‘same evidence’ test is somewhat broader in concept than Blockburger the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.” Id. at 1177.
Double jeopardy provisions protect an accused not only from a second prosecution on the same offense, but also from multiple punishments for the same criminal conduct. State v. Steele, supra; State v. Hayes, supra; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980).

Defendant notes that for the sanctions imposed on the contempt violation to constitute a basis for a claim of double jeopardy, we must first determine whether the contempt penalty was “punitive” rather than “coercive,” and therefore, criminal as opposed to civil. The State does not contest this issue and acknowledges, in brief, that punishment in the civil case was punitive. Thus, the contempt sanctions were criminal in nature.

The criminal charge pending is for theft, which is defined by La.R.S. 14:67(A):

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, ^practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

Contempt is defined by La.Code Crim.P. art. 20:

A contempt of court is an act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.

Contempts of court are of two kinds, direct and constructive.

The contemptuous act for which Defendant was punished is found in La.Code Crim.P. art. 23, which states, in pertinent part:

A constructive contempt of court is any contempt other than a direct one.
A constructive contempt includes, but is not limited to any of the following acts:
(2) Willful disobedience of any lawful judgment, order, mandate, writ, or process of court; ....

The provisions of each violation require proof of elements not necessary for proof of the other, and particularly the need to prove the additional element of enjoined behavior in the contempt proceeding.

Defendant relies not on application of the “Blockburger test,” but rather stakes his claim of double jeopardy on the applicability of the “same evidence rule.”

Defendant argues the contempt could not have been proven without the introduction of the four checks which are relied on as evidence in the present theft prosecution. In brief, Defendant points to his objection in the contempt proceeding to the introduction of any checks written and allegedly converted prior to the issuance |sof the injunction, on the grounds of relevancy. He argues the trial judge relied on these checks to find his conduct was contemptuous, and therefore, use of the same checks to prove theft in this case constitutes double jeopardy.

As the supreme court held in State v. Steele, 387 So.2d 1175, 1179 (La.1980), “[t]he test depends on the evidence necessary for conviction, not all the evidence introduced at trial....” Defendant also argues that the trial judge’s stated reasons prove he relied on the checks to find him in contempt. Defendant points to the following comments by the trial judge during the contempt proceeding:

[Defendant] violated not only the letter but the spirit of the agreement by doing jobs in competition before the injunction, after the injunction, and then setting up a sham corporation on September 15, 2003, to try to circumvent the injunction.

Defendant suggests the language “before the injunction,” while admittedly subject to varied interpretations, indicates the reliance on the checks as proof. We disagree. Defendant does not dispute the trial judge could have found him in contempt for multiple acts which occurred after issuance of the injunction.

Applying State v. Steele, 387 So.2d 1175, it is not the evidence introduced at the contempt hearing which is relied on to form the basis for determining “same evidence,” but rather, “the evidence necessary for conviction.” Checks written, pri- or to an injunction being issued, cannot be considered as evidence of contempt for violation of the injunction. The checks were superfluous to proof of contempt, and cannot be found to be the “same evidence” needed to prove the instant charge of theft.

The State urges the civil contempt penalty cannot form the basis for double jeopardy since it does not meet the definition pronounced in State v. Walker, 00-1028 (La.App. 3 Cir. 1/31/01), 778 So.2d 1192. In Walker, this court stated:

The protection against double jeopardy applies in three situations: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple | (¡punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Smith, 95-61 (La.7/2/96), 676 So.2d 1068; and State v. Mayeux, 498 So.2d 701 (La.1986).

Id. at 1194.

It would be incongruous to hold that a contempt punishment for violation of a court order, to which the State is not a party, precludes prosecution of a defendant for a theft violation. This situation is not an attempt by the State to twice prosecute, or twice punish, particular behavior. Rather, this situation presents a court’s attempt to punish an individual for obstructing or interfering with its administration of justice, and an independent attempt by the State to address asserted criminal behavior. As the State points out, sanctions for contempt and prosecution for violation of the criminal statute for theft each address unrelated actions, and one should not be exclusive of the other.

DECREE

For the above reasons, the prosecution of Defendant for theft does not constitute double jeopardy predicated on his having been found in contempt for violating a court order in the civil proceedings. The trial court’s denial of the motion to quash is affirmed.

MOTION TO QUASH AFFIRMED.

      . While the definition of contempt is found in the cited code articles, penalties for contempt are found in La.R.S. 13:4611.

      . In brief, the State argues the theft charge is not only predicated upon conduct evidenced by checks, but, also upon evidence of theft of business files by Defendant.


text:
    Charles HUMPHREY v. ICEE DISTRIBUTORS.
    No. 06-549.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 29, 2006.

      Mark Zimmerman, Attorney at Law, Lake Charles, Louisiana, for Plaintiff/Ap-pellee, Charles Humphrey.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, Louisiana, for Defendant/Appellant, Icee Distributors.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   COOKS, Judge.

| .STATEMENT OF THE CASE

This is a workers’ compensation case. Icee Distributors appeals the decision of the Workers’ Compensation Judge (WCJ) finding Icee Distributors improperly terminated workers’ compensation benefits paid to Charles Humphrey for a work-related injury. The employer relied upon La.R.S. 28:1208.1 which provides for the forfeiture of benefits for the failure of an employee to answer truthfully about a pri- or injury. Icee Distributors contends Mr. Humphrey did not disclose a prior back surgery on his application for employment. The WCJ found Icee Distributors failed to meet its burden of proof under the statute, but did not award penalties or attorney’s fees. For the reasons assigned below, we affirm the decision of the WCJ.

STATEMENT OF THE FACTS

Charles Humphrey, the claimant, is forty-nine years old and has held steady employment in various manual labor jobs. He is also a skilled carpenter. In the early 1990’s he opened a cabinet shop in Lake Charles and was self-employed until a back injury required him to have surgery. In July 1998, Dr. Dale Bernauer performed a posterior lumbar fusion at the L5-S1 level. Dr. Bernauer testified Mr. Humphrey did well post-operatively and was ready to resume work six months later. In February 1999, Mr. Humphrey was hired by Icee Distributors as a repairman. His duties included driving a company truck to various sites for the purpose of repairing Icee machines. He often worked sixty-hours a week and carried a tool bag. Mr. Humphrey worked for Icee Distributors without incident for nearly five years before the accident. On September 23, 2003, while engaged in the course and scope of his employment, Mr. Humphrey was involved in an automobile accident when he ran into the back of another vehicle. As a result, Mr. Humphrey injured his back at the L4-5 |glevel. He continued to work until December 19, 2003. Icee Distributors paid indemnity benefits until June 2004, at which time Icee Distributors terminated both indemnity and medical benefits based on Mr. Humphrey’s failure to disclose his prior back surgery. The WCJ found Icee Distributors failed to carry its burden of proof under La.R.S. 23:1201.1 and La.R.S. 23:1371. The WCJ also found the claim was reasonably controverted and denied penalties and attorney’s fees. Icee Distributors filed this appeal. Mr. Humphrey appeals the denial of penalties and attorney’s fees and requests attorney’s fees for work done on appeal.

LAW AND DISCUSSION

Icee Distributors contends Mr. Humphrey failed to disclose his prior lumbar fusion at the L5-S1 level on his employment application and, as a result Icee Distributors was prejudiced in its ability to seek reimbursement from the second injury fund. Icee Distributors relies on La. R.S. 23:1208.1, which provides in relevant part:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund.

The Second Injury Fund provision is found in La.R.S. 23: 1371, which provides in relevant part:

A. It is the purpose of this Part to encourage the employment of physically handicapped employees who have a permanent, partial disability by protecting employers, group self-insurance funds, and property and casualty insurers from excess liability for workers’ compensation for disability when a subsequent injury to such an employee merges with his preexisting permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone.

In Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214, the Louisiana Supreme Court articulated the relationship between these two provisions, as follows:

A work injury subsequent to a known permanent partial disability qualifies an employer to seek reimbursement for worker’s compensation benefits from a statutorily designated “Second Injury Fund” under certain circumstances. A claimant’s untruthful statement regarding his permanent partial disability which prejudices his employer’s ability to seek reimbursement from the fund gives rise to an affirmative defense under La.R.S. 23:1208.1, whereby the injured employee forfeits all compensation benefits.

Id. at 1217.

However, a false statement on an employment application does not automatically result in the forfeiture of benefits. The employer must establish it was prejudiced by the misrepresentation. The employer is only prejudiced (1) when the false statement directly relates to the medical condition for which a claim is made or (2) affects the employer’s ability to receive reimbursement from the second injury fund. Id. A “direct relation is established when the subsequent injury was inevitable or very likely to occur because of the presence of the preexisting condition.” Id. at 1120. The second prong requires the employer to prove the false statement prejudiced its ability to receive reimbursement from the second injury fund, by proving the second injury “merged” with the preexisting permanent disability to produce a “materially and substantially greater” disability. “Merger”, as defined by La.R.S. 23:1371, is limited to the following:

(1) The subsequent injury would not have occurred but for the preexisting permanent partial disability; or
(2) The disability resulting from the subsequent injury in conjunction with the preexisting permanent partial disability is materially and substantially greater than that which would have resulted had the preexisting permanent partial disability not be present, and the employer has been required to pay and has paid compensation for that greater disability.

lKIn the present case, it is undisputed that Mr. Humphrey did not disclose his prior back surgery on his employment application. When questioned regarding his omission, Mr. Humphrey answered candidly, “I got tired of people telling me they wouldn’t hire me.” However, the WCJ found the employer failed to prove the second injury was inevitable or very likely to occur because of the presence of the preexisting lumbar fusion. Moreover, the WCJ found the medical evidence did not support a finding that the disability following the second injury was materially or substantially greater than that which would have resulted had the preexisting condition not been present.

The Plaintiff presented the medical testimony of Dr. Bernauer. Dr. Bernauer performed the fusion at the L5-S1 level. He testified Mr. Humphrey was ready to resume employment six months after the first injury and assessed his disability at 12% with a 25 pound weight limit in lifting. The evidence established he did resume employment and was hired by Icee Distributors about six months after the back surgery. He worked for Icee for nearly five years without incident. His job entailed long hours of driving, carrying a heavy tool belt, bending, stooping and lifting to repair Icee machines. When Mr. Humphrey saw Dr. Bernauer shortly following the accident, Dr. Bernauer found a definite change in Mr. Humphrey’s condition. His examination revealed a limited range of motion. An MRI done on November 21, 2003, showed diffused disk bulging with neural canal narrowing bilaterally at L4-5. A diskogram showed an abnormal disk at L4-5, total incompetence of the disk with abnormal appearance and pain. After the accident, Dr. Bernauer raised his disability only slightly to 15% with 20 pound weight limit, with the same restrictions as far as repetitive stooping, bending, squatting, crawling. Dr. Ber-nauer opined that the prior fusion at the L5-S1 level did not make an injury at the L4-5 level inevitable or even | fivery likely. He testified: “I don’t think it made it worse. The fact that he had a fusion at L5-S1 didn’t make the L4-5 worse, as far as the injury he had to it.” We agree with the WCJ that Icee Distributors has failed to prove but for Mr. Humphrey’s nondisclosure, it would have been entitled to reimbursement from the second injury fund. Icee Distributors has failed to prove the subsequent injury to the L4-L5 level, which occurred following an automobile accident, was inevitable or very likely to occur because of the prior fusion or that the subsequent injury to the L4-5 level was materially and substantially greater than that which would have resulted had the fusion at the L5-S1 level not been present.

Mr. Humphrey appeals the decision of the WCJ denying penalties and attorney’s fees. In order for a claimant to recover penalties and attorney’s fees, there must be a showing that the employer did not raise a seriously disputed issue. Hickman v. Jim Smith Logging, et al., 04-157 (La.App. 3 Cir. 9/29/04), 883 So.2d 1072. “To reasonably controvert a workers’ compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant.” Johnson v. Johnson Controls, Inc., 38,495, pp. 16-17 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 933-34. In this case, Mr. Humphrey failed to disclose his prior back surgery on the employment application. Icee Distributors relied on the testimony of Dr. Bernauer, the treating physician, to support its position. An award of penalties and attorney’s fees are penal in nature and must be strictly construed. We find no error on the part of the WCJ denying the imposition of penalties and attorney’s fees. We also decline to award attorney’s fees for work done on appeal.

^DECREE

Based on the foregoing review of the evidence, we affirm the decision of the Workers’ Compensation Judge. All costs of this appeal are assessed to Icee Distributors.

AFFIRMED.


author: GREMILLION, Judge.

text:
    ADVANCE PRODUCTS & SYSTEMS, INC. v. Gary SIMON, et al.
    No. 06-609.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      William W. Stagg, Jeffrey Ackermann, Michael J. Vallan, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Plaintiff/Appellant, Advance Products & Systems, Inc.
    Thomas M. Flanagan, Jennifer L. Thornton, W. Raley Alford, III, Stanley, Flanagan & Reuter, LLC, New Orleans, LA, for Plaintiffs/Appellants, Advance Products & Systems, Inc.
    Carla Marie Perron, Joe House, Mark Wham, Houston, TX, for Plaintiffs/Appellants, Advance Products & Systems, Inc.
    Henry C. Perret, Jr., Frank S. Slavich, III, Kyle M. Bacon, Perret, Doise, Lafayette, LA, for Defendants/Appellees, Jean Menard Sullivan, Patrick Sullivan, Lucas Johnson, Chad Calais, Gary Simon.
    Mark R. Beebe, Rusty J. Savoie, Jody R. Montelaro, Peter M. Mansfield, Adams & Reese, New Orleans, LA, for Defendants/Appellees: Nanette Smith Cazayoux, Francis Eugene Cazayoux, CCI Piping Systems, LLC, Cazayoux Commercial Investments, LLC.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

Mn this case, the plaintiff, Advance Products & Systems, Inc. (APS), appeals the trial court’s grant of summary judgment in favor of the defendants, Gary Simon, Chad Calais, Lucas Johnson, Patrick Sullivan, Jean Menard Sullivan, CCI Piping Systems, L.L.C., and CCI Pipeline Services, Ltd. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are not at issue: APS is owned by Tom Forlander, who was convicted of possession of child pornography and sent to serve his sentence in a federal facility in Beaumont, Texas, beginning in June 2003. During the time he was incarcerated, Tom appointed his wife of one week, Joann Forlander, as the CEO of APS. Joann had been a school teacher and had no experience or knowledge of APS or the industry.

Simon, Calais, Johnson, Sullivan, and Menard were all employed by APS through December 2003, when they departed to work for CCI. This Texas-based company was begun several years prior to this time by APS’s former employee, Francis Cazayoux. In December 2003, Cazay-oux formed CCI-La, which employed the Employee Defendants.

In March 2004, APS filed a petition for injunctive relief urging that the Employee Defendants violated non-compete and nondisclosure agreements they had entered into while employed by APS. It further urged that one or more defendants [¿violated the Louisiana Unfair Trade Secrets Act. CCI answered and filed numerous exceptions and, as plaintiff-in-recon-vention, requested attorney’s fees. The Employee Defendants also answered and requested attorney’s fees and damages.

In September 2004, CCI filed a motion for expedited consideration of motion for injunctive relief urging that APS filed an identical lawsuit in a Texas court. It further filed its own motion for injunctive relief urging that APS be enjoined from pursuing its identical claims in a Texas court. APS then filed a motion to dismiss without prejudice the individual defendants, but not CCI, from the Texas lawsuit.

APS filed an amended and restated petition in December 2004. CCI answered and asserted as plaintiffs-in-reconvention a right to attorney’s fees and damages for a groundless lawsuit for purposes of harassment. APS filed an exception and answer to CCI’s reconventional demand urging that it was premature.

In early March 2005, the Employee Defendants and CCI filed a motion for summary judgment. In late March 2005, APS opposed all of the defendant’s motions for summary judgment urging that there were multiple disputed facts. It further urged that summary judgment was premature because it had not had the opportunity to depose Calais, Johnson, Sullivan, Menard or the Cazayouxs. CCI filed a motion for attorney’s fees and costs. APS then filed a motion in opposition and a reconventional demand.

Following a hearing in April 2005, the trial court rendered a judgment granting summary judgment in favor of the Employee Defendants and CCI. The trial court held that there was no genuine issues of material fact as to any claim presented |3by APS and dismissed its entire case with prejudice at APS’s cost. APS now appeals.

After filing appellate briefs, APS filed a motion and incorporated memorandum to strike certain documents that were submitted with the defendants’ brief. The Employee Defendants urge that APS failed to object at the trial court level to the inclusion of the mentioned documents and failed to assign as error on appeal the admission of these documents. Although we are inclined to agree with the Employee Defendants, we find this issue moot as none of the documents were relevant to our findings on appeal.

ISSUES
APS assigns as error:
1. The trial court abused its discretion by not allowing it to depose the defendants or otherwise engage in needed discovery before ruling on the defendants’ motion for summary judgment.
2. The trial court erred in dismissing the case without a trial because the record reveals that there are genuine issues of material fact as to all of APS’s causes of action that APS is entitled to present to a jury for resolution.
3. The trial court’s granting of summary judgment was the product of impermissible credibility determinations.
4. The trial court’s granting of summary judgment was improper because it did not construe all reasonable factual inferences from the evidence in favor of APS.
5. Summary judgment was improper because defendants’ state of mind, motive, and intent are critical factual issues that should be determined by the jury at a trial on the merits.

SUMMARY JUDGMENT

The law pertaining to summary judgment was discussed by the Louisiana |4Supreme Court in its per curiam opinion in Hines v. Garrett, 04-0806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original):

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id. Whether a fact is material is determined in light of the relevant substantive law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d 898, writ denied, 03-1388 (La.9/13/03), 853 So.2d 645.

DISCOVERY

In its first assignment of error, APS argues that the trial court erred in failing to allow it additional time for discovery. As noted below, the issue was raised at the summary judgment hearing and the trial court specifically found that APS had adequate time to conduct whatever discovery it needed and that additional time for discovery would not change the result. Louisiana Code of Civil Procedure Article 966(C)(l)states: “After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is ^entitled to judgment as a matter of law shall be granted.” Additionally, La.Code Civ.P. art. 966(B) allows the trial court, for good cause, to give the party adverse to the motion for summary judgment, “additional time to file a response, including opposing affidavits or depositions.”

La.Code Civ.P. art. 967(C) states (emphasis added):

If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

In Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908, 912-13 (La.1986), the supreme court stated:

There is no absolute right to delay action on a motion for summary judgment until discovery is completed. Under C.C.P. 967, a trial judge clearly has the discretion to issue a summary judgment after the filing of affidavits, or the judge may allow further affidavits or discovery to take place.
The only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there are no genuine issues of fact.

This court uses the abuse of discretion standard to determine if the trial court allowed adequate time for discovery. See Mouton v. Sears Roebuck and Co., 99-669 (La.App. 3 Cir. 11/2/99), 748 So.2d 61, writ denied, 99-3386 (La.2/4/00), 754 So.2d 232.

We find that the trial court did not abuse its discretion in declining to allow APS additional time to obtain telephone records and to depose the Employee Defendants. APS had more than a year to depose witnesses between the time it filed Ififor injunctive relief in March 2004, and the summary judgment hearing in April 2005. This assignment of error is without merit.

NON-COMPETE AGREEMENT

APS next argues that genuine issues of material fact exist with regard to non-compete agreements signed by Simon and Menard. Simon and Menard signed non-compete agreements on June 2, 1988, during their first round of employment with APS. Simon left in 1990, and Menard in 1991. The agreement provided that they would not compete with APS upon termination of their employment within the same geographical region for two years. Simon and Menard resumed working for APS shortly after their departure and did not resign until December 2003. However, during that time, neither Simon nor Menard signed new non-compete agreements. There is no dispute that they did not violate the non-compete agreement following their initial departure from APS. Both, however, went to work for CCI, a competitor of APS in the same geographical region, after their departure in December 2003. Both APS and the Employee Defendants agree that pre-1989 law on non-compete agreements applied to the contracts.

APS argued at the hearing and in its brief that the agreements were ratified when Simon and Menard returned to work because they resumed work having all of the benefits they had before they left, such as seniority and vacation time. It urges there are factual and legal disputes as to what effect Simon and Menard’s brief departure had on their non-compete agreements.

At the conclusion of the arguments, the trial court stated:

I find that, as to those defendant employees who had no noncompetitive agreement signed, I’m granting the motion for summary judgment. As |7to the two that did, I’m granting a motion for summary judgment as well ... I’m granting this one as well, on the basis that I do believe that a noncompetitive agreement as it was viewed prior to the 1990 revision, or 1989 statutes, cannot be novated or ratified. I think that, applying pre-1990 law, that would be frowned upon. And, secondly, I do not find that there is any evidence — any substantive fact brought forth by the plaintiff to show me that he will even be able to come close to meeting his burden of proof at trial or showing substantial expenditure or time spent specifically on the employee as required by National Motor Club v. Conque and the Orkin case.
Specifically, the — the Orkin case is really now the keynote case, because it was — it went far beyond what National Motor Club has.

Louisiana Revised Statute 23:921 contains the law governing non-compete agreements. Apart from the requirements of pre-1989 law, we agree that the non-compete agreements could not be ratified or novated. There was no evidence to suggest that the employees intended to ratify the contracts, and we agree that pre-1989 law would frown upon the ratification of a non-compete agreement, which must be strictly construed against the party seeking its enforcement and strictly construed in favor of employees. See SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294; Petroleum Helicopters, Inc., v. Untereker, 98-1816 (La.App. 3 Cir. 3/31/99), 731 So.2d 965, tout denied, 99-1739 (La.8/5/99), 747 So.2d 40. Moreover, the overriding principles of public policy dictate that non-compete agreements are not favored in Louisiana. Id. Accordingly, we find that the non-compete agreements were no longer valid when Simon and Menard resumed working for APS. Moreover, even if we assumed that they were ratified, there was no evidence to suggest that APS would have been able to meet its burden of proving that it had invested substantial sums in specially training Simon or Menard or in advertising their connection with APS, as required by the pre-1989 law pertaining to | Rnon-compete agreements. See Nat’l Motor Club of La., Inc. v. Conque, 173 So.2d 238 (La.App. 3 Cir. 1965), Orkin Exterminating Co. v. Foti, 302 So.2d 593 (La.1974). Accordingly, we agree that APS will be unable to satisfy its evidentiary burden at trial and that no genuine issues of material fact exist.

LOUISIANA UNIFORM TRADE SECRETS ACT / CONFIDENTIALITY AGREEMENTS

In this assignment of error, APS urges that the Employee Defendants signed confidentiality agreements and had a duty to protect confidential information. APS argues that there are genuine issues of material fact regarding whether the Employee Defendants misappropriated from APS and disclosed to CCI: (1) APS’s customer list and contact information; (2) APS’s design and process for manufacturing plastic casing spacers; and (3) APS’s accounting and pricing software and data. In order to show that the trade secrets have been misappropriated, APS would have to prove that 1) a trade secret existed, and 2) that they were misappropriated by the Employee Defendants. La.R.S. 51:1431; Pontchartrain Medical Labs, Inc. v. Roche Biomedical Labs., Inc., 95-2260 (La.App. 1 Cir. 6/28/96), 677 So.2d 1086.

Louisiana Revised Statute 51:1431(4) states:

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

| ^Misappropriation means:

(a) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(b) disclosure or use of a trade secret of another without express or implied consent by a person who:
(i) used improper means to acquire knowledge of the trade secret; or
(ii) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: (aa) derived from or through a person who had utilized improper means to acquire it;
(bb) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (cc) derived from or though a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(in) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it has been acquired by accident or mistake.

La.R.S. 51:1431(2).

The trial court stated at the hearing:
[I] think that in the motion for summary judgment, the plaintiff would have to at least be able to show me the list somehow got into the hands of the employees, either that he gave it to them or that they took it surreptitiously. And I don’t see that at this point; nor do I see that giving the plaintiff any additional time for discovery would solve that problem, because, I think, at best, it would raise suspicions but not substantive facts. So I’m going to grant the motions for summary judgment with regard to the trade secrets as well.
hn. • ■ [I]t seems to me that what you’re asking the Court to do is to allow you to go on an expedition to determine whether or not you can find any evidence to support your defense of this motion for summary judgment. You’re not telling me that there is evidence out there. You’re telling me you have the right to explore it. I agree that you had a right to discovery in this case; but I think that in light of the motion for summary judgment, you have to be able to give me more than, “We have the right to explore.”
... [T]he law as I understand it says you had to come here today with substantive facts to show the — my authority to allow you to take discovery is discretionary; and I think that in order for me to exercise that discretion in your favor, you would have had to have given me something a little more solid. I mean, just tell me that, you know, there’s one person who has a telephone list that is suspicious or that would indicate a number of clients were called. I don’t have any of that.
I think the other side of the coin is that the defendants have a right to be relieved of the burden of the lawsuit if they can show what they need to show on summary judgment. That’s what summary judgment is for, and I think they’ve met it. So I’m going to stand on my rulings.
And as to the confidentiality agreement, without being able to show that any confidence was breached, then I will grant that motion as well.

We agree with the trial court’s grant of summary judgment on this issue as well. It was clear at the hearing that APS had no factual basis, nor any proof that there were any trade secrets involved, much less if they were misappropriated. Counsel repeatedly stated that he “thought” someone made a copy of the customer list and, again, argued that he did not have enough time for discovery. At the conclusion of APS’s argument in its brief, it states, “APS should be allowed to explore the state of mind of the defendants and present its evidence.” Counsel claimed at the hearing that some phone records will establish the taking of client lists. As we have stated before, there was no error in the trial court’s refusal to allow additional time for discovery. Simply, there is no evidence, only unsubstantiated allegations, and that is simply insufficient. There is no doubt that APS will be unable to meet its burden of proving that a trade secret existed, was misappropriated, or that any confidentiality was breached.

LOUISIANA UNFAIR TRADE PRACTICES/FIDUCIARY DUTY

APS also argued that the Employee Defendants violated La.R.S. 51:1401 et seq., otherwise known as the Louisiana Unfair Trade Practices and Consumer Protection Law. Louisiana Revised Statutes 51:1405(A) declares unlawful “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” In order to recover under the act, APS would have to prove fraud, deceit, misrepresentation, or other unethical conduct. Dixie Sav. and Loan Ass’n v. Pitre, 99-154 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, writ denied, 99-2867 (La.12/10/99), 751 So.2d 855.

In this assignment of error, APS urges that “there are credibility determinations and fact issues for trial regarding whether the defendants intended to harm APS’s business,” and that there is “circumstantial evidence, which on a remand will be bolstered by future depositions and document requests, that the defendants acted with malice.” Again, APS makes the same allegations as it did with regard to misappropriation of trade secrets without any evidence to support it. As to what duties were owed or what breach might have occurred, APS’s counsel replied at the hearing that “it goes to the discovery issues.” As we have previously noted, there was no error in the trial court’s refusal to allow additional time for discovery and, clearly, APS will be unable to meet its burden of proof at trial.

1 ^Based on the foregoing, we find no merit in APS’s assignments of error. We find that the trial court did not make impermissible credibility determinations, nor did it fail to construe all reasonable factual inferences from the evidence in favor of APS. Finally, without any evidence that any of its claims will be proven at trial, the issue of the Employee Defendants’ state of mind, motive, and intent are never reached. Accordingly, these assignments of error are without merit.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of the defendants, Gary Simon, Chad Calais, Lucas Johnson, Patrick Sullivan, Jean Menard Sullivan, CCI Piping Systems, L.L.C., and CCI Pipeline Services, Ltd. is affirmed. All costs of this appeal are assessed against Advance Products & Systems, Inc.

AFFIRMED.

      . In order to distinguish Patrick Sullivan and Jean Menard Sullivan, we will refer to Jean by her maiden name, Menard. When referring only to Calais, Johnson, Sullivan, and Menard, we will use "Employee Defendants.” When referring to all of the defendants, we will use "defendants.”