source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Lamar Tate HUTCHINSON, Jr. v. TRUSSCO, INC., et al.
    No. 2006-582.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      James Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Plaintiff/Ap-pellee, Lamar Tate Hutchinson, Jr.
    Steven Griffith, Jr., Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, New Orleans, LA, for Defendants/Appellants, Trussco, Inc., Omni Energy Services Corp.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   AMY, Judge.

h The plaintiff filed suit against his employer for wages due, along with statutory penalty wages and attorney’s fees. The plaintiff claims the employer deducted what it deemed to be unsubstantiated charges to the corporate credit card from his final paycheck. The employer filed a reconventional demand seeking additional charges incurred on the credit card. The trial court found in favor of the plaintiff, awarding wages, penalty wages, and attorney’s fees. The trial court denied the reconventional demand. The employer appeals. We affirm and award additional attorney’s fees for work performed on appeal.

Factual and Procedural Background

The plaintiff, Lamar Hutchinson, was employed by Trussco, Inc. as its Director of Safety and Risk Management throughout the year of 2004. According to Mr. Hutchinson, his position entailed responsibility for the company’s environmental, safety, and health programs. He explained that, depending on the severity of any accident that occurred, his position required him to perform accident investigations and, at times, follow up on investigations. Thus, testimony indicated that Mr. Hutchinson spent a great deal of time on the road.

During his tenure with Trussco, Mr. Hutchinson reported directly to its President and CEO, Edward Laborde. As part of this supervision, Mr. Laborde reviewed the statements from Mr. Hutchinson’s corporate credit card. He testified that there were no irregularities in Mr. Hutchinson’s use of the card during his oversight of the expenses. Mr. Hutchinson explained that he also had “day-to-day communication” with Vice President of Operations, Karl Comeaux.

Omni Energy Services Corporation acquired Trussco in June 2004. Mr. Hutchinson continued in his position as Director of Safety and Risk Management |2with Trussco. Mr. Laborde continued in his capacity as Mr. Hutchinson’s supervisor for several months until he left the company in January 2005. Mr. Comeaux also remained with Trussco after the acquisition and ultimately left his position in December 2004. Thereafter, Nolan J. Vice, who had served as a liaison between Omni and Trussco for a period, became Mr. Hutchinson’s supervisor.

In his role as supervisor, Mr. Vice began receiving the statements for Mr. Hutchinson’s corporate credit card. When he received the bill for the February cycle, Mr. Vice questioned a number of charges incurred. Of particular concern were cash advances totaling $2,450.00. The March statement presented similar questions. Mr. Vice contacted Mr. Hutchinson to reconcile the charges and to provide related receipts. The extent of the information that Mr. Hutchinson provided was at issue at trial.

Mr. Hutchinson contended that his expenditures were business related. With regard to the cash advances, he explained that the cash was necessary for ongoing workers’ compensation investigations and that the expenditures were consistent with the instructions of Mr. Laborde and Mr. Comeaux. In this regard, Mr. Hutchinson, Mr. Laborde, and Mr. Comeaux testified that information pertaining to the workers’ compensation investigations was kept among themselves so to limit the possibility of leaking information to the claimants.

Mr. Vice ultimately found the documentation of the charges insufficient and advised Mr. Hutchinson by e-mail that $500.00 would be deducted from his paycheck each pay period. Within days, Mr. Hutchinson tendered his resignation from Trussco. As no deductions had yet been taken from Mr. Hutchinson’s paycheck, Trussco deducted the charges it denied from Mr. Hutchinson’s final paycheck. According to |sOmni Energy’s Human Resource Director Lisa Simmons, Mr. Hutchinson’s final check, dated May 5, 2005, reflected a $0.00 payment.

Mr. Hutchinson filed a “Summary Petition for Wages Due, Penalty Wages and Attorney’s Fees” on July 18, 2005. He sought wages due under La.R.S. 23:631 as well as penalties equal to 90 days wages and reasonable attorney’s fees under La. R.S. 23:632. Trussco answered the petition, asserting that the terms of its policy permitted it to offset or deduct the allegedly unauthorized charges. In a reeonven-tional demand, Trussco claimed entitlement to additional charges not covered by the final paycheck.

Following a hearing, the trial court found in favor of Mr. Hutchinson and awarded the full amount of wages due, $8,369.45. The court also awarded $24,-298.50 in penalty wages and $7,050.00 in attorney’s fees. The court denied Trus-sco’s reconventional demand.

Trussco appeals, assigning the following as error:

1. The Trial Court erred by denying Trussco the ability to offset wages owed to Mr. Hutchinson against the unsubstantiated charges.
2. The Trial Court erred by finding that the Defendants acted arbitrarily and in bad faith by offsetting unsubstantiated credit card charges against Mr. Hutchinson’s wages.
3. The Trial Court erred by awarding an unreasonable amount of attorney’s fees.

Mr. Hutchinson answers the appeal and seeks additional attorney’s fees for work performed on appeal.

14Discussion

Penalties and Offset

In its first two assignments of error, Trussco questions the trial court’s finding of a lack of good faith, which resulted in the award of penalty wages, and the determination that the deductions, or offsets, were not permissible.

Louisiana Revised Statutes 23:631(A)(1)(b) provides, in pertinent part:

Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.

The provision further indicates that, in the event of a dispute as to the amount due, the employer “shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592.” La.R.S. 23:631(B).

With regard to penalties, La.R.S. 23:632 is entitled “Liability of employer for failure to pay; attorney fees” and provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

|BThe Louisiana Supreme Court has instructed that the statutory penalty of La.R.S. 23:632 must be strictly construed and is subject to equitable defenses. Beard v. Summit Inst. for Pulmonary Med. and Rehab., Inc., 97-1784 (La.3/4/98), 707 So.2d 1233; Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555 (La.1978). See also Harvey v. Bass Haven Resort, Inc., 99-909 (La.App. 3 Cir. 2/2/00), 758 So.2d 264; Hebert v. Ins. Center, Inc., 97-298 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, writ denied, 98-0353 (La.3/27/98), 716 So.2d 888. To avoid the penalty of La.R.S. 23:632, the employer must demonstrate the presence of a good faith, non-arbitrary defense. Beard, 707 So.2d 1233. A finding related to an employer’s good faith in failure to pay, or lack thereof, requires a factual determination and is thus subject to the manifest error standard of review. Winkle v. Advance Products & Systems, Inc., 98-694 (La.App. 3 Cir. 10/28/98), 721 So.2d 983.

Trussco asserted that it was justified in deducting the questioned charges. The trial court, however, found inadequate proof of this good faith defense. In ruling, the trial court referenced Sherry Richard v. Vidrine Automotive Services, Inc., 98-1020 (La.App. 1 Cir. 4/1/99), 729 So.2d 1174, wherein the first circuit found that compensation, in the form of a setoff, was a valid equitable defense to the withholding of wages. The first circuit explained that:

Louisiana statutory law and jurisprudence recognize three kinds of setoff, or to use the codal term, compensation: legal, which is effected by operation of law, La.C.C. art. 1893; contractual, which is effected by the will of the parties, La. C.C. art. 1901; and judicial, which is effected by the courts, La.C.C. art. 1902.

Id. at 1178 (footnotes and citations omitted).

As noted by the trial court, Richard involved a situation wherein the employer “had a reasonable policy of collecting debts owed by departing employees by | (¡deduction from the employee’s final paycheck.” Id. at 1178 (emphasis added). Thus, the first circuit concluded that there was no manifest error in the determination that the employee entered into an agreement “whereby any wages owed to her upon the termination of her employment would be setoff by any amount she owed to [the employer].” Id. at 1178. Accordingly, a contractual basis was found for the setoff in Richard.

In the present case, however, the trial court found that a contractual basis for the setoff was not established. It explained:

[T]he setoff that took place was neither contractual nor was it proved to be Trussco’s policy for departing employees. The evidence clearly showed that the plaintiff’s previous supervisors had clearly ordered him to perform the surveillance activities to which his credit card charges were connected, and they guaranteed him reimbursement for expenses incurred as a result of these activities. When the change in supervisory personnel occurred, the plaintiff was still operating under his previous instructions and was not ordered to cease them. The very nature of his activities required confidentiality and secrecy as to most of the Trussco personnel in order for them to succeed.
The fact that the new supervisor, Mr. Nolan Vice, disapproved of these surveillance activities upon learning of them and the further fact that he declined to accept the plaintiffs explanations for the expenses charged on his credit card do not constitute a good faith defense available to the employer. It is clear from the evidence that Trussco’s decision to withhold $500/month from plaintiffs paycheck arose from the instructions given to the plaintiff by his previous supervisors. The plaintiff found this unfair and resigned. This set of circumstances does not give rise to a good faith defense of “setoff” available to the employer Trussco. The plaintiff is entitled to an award of penalties equal to the value of his wages for ninety (90) days pursuant to La.R.S. 23:682.

The record supports both the denial of the setoff and the award of penalties. First, Mr. Hutchinson explained that the charges were business related, a claim that the trial court was free to accept. Further testimony supports the trial court’s determination that some of the expenditures were made in furtherance of instructions from Mr. Laborde and Mr. Comeaux. Mr. Hutchinson explained that the cash |7advances on the credit card were related to workers’ compensation investigations and that Mr. Laborde and Mr. Comeaux gave him permission to do “whatever [he] needed to do to get it done[.]” Mr. Laborde and Mr. Comeaux testified similarly, noting their knowledge of the investigations and also confirming that Mr. Hutchinson’s position demanded independent operations for security reasons. Mr. Laborde explained that he was aware that corporate funds would be used by Mr. Hutchinson in the surveillance, whether the funds were reimbursed to Mr. Hutchinson or were incurred through cash advances on the corporate credit card. Mr. Laborde testified that, again for security reasons, he would not have paid for surveillance by checks issued through the accounting department.

Mr. Laborde further explained that Mr. Hutchinson was responsible for procuring office supplies for his department, an expenditure questioned at trial. Mr. La-borde stated that, although he required documentation when reconciling employee credit cards, receipts were not necessarily required if he was aware of the purpose of the expenditures. Evidence also supports a determination that Mr. Laborde’s ongoing instructions were either inadequately conveyed to the new supervisor, Mr. Vice, or that new operating procedures were not explained to Mr. Hutchinson. The trial court could have found either event attributable to Trussco. Given the above testimony and related credibility determinations, the trial court was not manifestly erroneous in concluding that Trussco failed to prove that it was entitled to setoff the expenses claimed.

With regard to penalties, the trial court could have concluded that Trussco failed to establish that the final, adjusted paycheck was rendered pursuant to a policy permitting a deduction of disputed wages. While Trussco produced an employee |shandbook explaining that deductions could be taken from a final paycheck, Trusseo’s argument is flawed insofar as the record indicates that Mr. Hutchinson did not sign an acknowledgment of the policy. In fact, Mr. Hutchinson denied ever receiving the employee handbook in question. Thus, the trial court permissibly found that the deductions were not made pursuant to a policy agreed to by Mr. Hutchinson. This determination distinguished the present matter from that in Richard, 729 So.2d 1174. In addition to the failure of evidence regarding the contractual basis for the setoff, neither did Trussco establish the existence of a “legal” or “judicial” basis.

Finally, Trusseo’s assertion that it had a permissible basis for the setoff at the time the final paycheck was reduced is obviously deficient in light of Hebert, 706 So.2d at 1012, wherein a panel of this court explained that: “The defense of setoff requires mutual obligations whereby each obligor owes an equally liquidated and de-mandable debt to each other.” A debt is “liquidated when it is certain what is due and how much is due. That which has been certain as to amount due by agreement of parties or by operation of law.” Black’s Law Dictionary 642 (6th ed. abridged 1991). While Trussco claims that there were equally liquidated and demand-able debts at the time it took the setoff from the final paycheck, it has not proven such. Rather, the sum owed to Trussco, if any, was very much in dispute and is the very nature of Mr. Hutchinson’s claim.

For these reasons, the trial court’s denial of the claimed setoff and the award of penalties are supported by the record. These assignments lack merit.

Attorney’s Fees — Quantum,

Finally, Trussco asserts that the $7,050.00 awarded in attorney’s fees is excessive. It asserts that the award should be more in line with that awarded in Winkle, 721 So.2d 983 (wherein this court found no error in the trial court’s award of $2,500 for a case lasting two days and in which nine witnesses testified). As explained in Winkle, the factors to be considered in establishing a reasonable attorney’s fee are:

(1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge.

Id. at p. 992, quoting Rivet v. State, Dept. of Trans, and Dev., 96-0145, pp. 11-12 (La.9/5/96), 680 So.2d 1154, 1161.

Having reviewed the record before us in light of the above factors, we find no abuse of discretion in the quantum of attorney’s fees awarded. Counsel assumed responsibility of the case on a contingency basis and successfully represented his client at trial. Additionally, the award took into account the extent of work performed and the diligence of counsel as it was reflective of billing records provided. We do not disturb this award on review.

Answer

In his answer to the appeal, Mr. Hutchinson seeks additional attorney’s fees for work performed on appeal. As counsel for Mr. Hutchinson has successfully defended this matter, we award an additional $3,000.00.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed to the appellants, Trussco, Inc., and OMNI Energy Services Corp. Additional attorney’s fees in the amount of $3,000.00 are awarded for work performed on appeal.

AFFIRMED. ADDITIONAL ATTORNEY’S FEES AWARDED.

      . The penalty was calculated based on Mr. Hutchinson's daily rate of pay, which was determined to be $269.98⅛.


author: SULLIVAN, Judge.

text:
    Brenda CHASSION v. CINGULAR WIRELESS.
    No. 2006-691.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Michael E. Parker, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, Cin-gular Wireless.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellee, Brenda Chassion.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

h Cingular Wireless (Cingular) appeals a judgment awarding Brenda Chassion temporary total disability benefits, medical expenses, penalties, and attorney fees based upon a finding of disability due to lateral epicondylitis that developed while she was in its employ. Ms. Chassion has answered the appeal, seeking additional attorney fees for defending the appeal. For the following reasons, we affirm as amended.

Discussion of the Record

Ms. Chassion began working for Cingu-lar as a customer service representative (CSR) in October of 2001. In describing her duties as a CSR, she testified that, while taking incoming calls from Cingular customers, she had to access their accounts from a computer file and type in what the customer wanted or what was said at the time of the call. She did so while sitting at a computer terminal with a telephone headset and entering data while operating a computer keyboard and mouse. She explained that, as a single mother, she accepted overtime whenever it was offered, and she estimated that in July of 2003, she was working approximately sixty hours per week. She also testified that she was offered overtime not to take lunch breaks, which she often accepted, and that she sometimes did not take her fifteen-minute breaks, at Cingular’s request, to help out when they were busy.

On August 25, 2003, Ms. Chassion reported to her manager that her hand started hurting while she was typing. She described her pain as moving up the left arm to the neck “like it was something pulling.” She stated that her manager told her to start taking a half-hour lunch break, instead of no lunch at all, but this did not seem to help.

| ;»Ms. Chassion was first seen by Dr. James Clause, who diagnosed tendinitis. On September 16, 2003, Dr. Clause referred Ms. Chassion to an orthopedic surgeon, Dr. Angela Mayeux, who began treating her on October 1, 2003. Dr. May-eux noted that Ms. Chassion’s chief complaints were neck pain and left arm pain, with occasional right arm pain, and decreased grip strength of the left hand. Ms. Chassion had reported to Dr. Mayeux that “she has been doing a tremendous amount of overtime, up to 60 hours in a week” as a clerical worker who does a lot of typing. Dr. Mayeux’s diagnosis was cervical strain and bilateral lateral epicon-dylitis secondary to overuse. Her plan of treatment included physical therapy, pain medication, and remaining off work. On October 20, 2003, after ten physical therapy visits, Ms. Chassion reported that she was fifty percent better, but Dr. Mayeux still noted that examination of the arms revealed “fairly significant lateral epicon-dylitis.” Dr. Mayeux approved additional physical therapy, with a return to work expected on November 5, 2003.

On November 12, 2003, Ms. Chassion reported that her elbow pain worsened after she returned to work and that she still had left neck complaints. Noting that Ms. Chassion still had “bilateral lateral epicondylitis much worse and [sic] left in the right,” Dr. Mayeux injected both arms and extended her physical therapy prescription, while recommending that she remain off work until the following Monday. On December 17, 2003, Dr. Mayeux noted that Ms. Chassion’s left lateral epicondyli-tis had healed, but that it was still present on the right. Dr. Mayeux again injected the right arm and recommended that she be put on work four hours per day for the next month. On January 13, 2004, Ms. Chassion called Dr. Mayeux’s office to report that she could tolerate no more than a half hour at work. When she returned on | ^February 10, 2004, Dr. Mayeux again noted the presence of bilateral epicondyli-tis, this time worse on the right than the left. Because Ms. Chassion indicated that she was not interested in surgery or injections at that time, Dr. Mayeux prescribed a topical prescription for pain control, later approving additional pain medication.

Ms. Chassion testified that she last worked for Cingular in December of 2003 and that she was terminated in February of 2004, at which time her health insurance benefits stopped. She explained that Cin-gular’s workers’ compensation carrier had not paid any of her medical bills. She testified that she applied for -unemployment, but she was told that no job could be found for her because she could not use her hands.

In response to a letter written by Ms. Chassion’s attorney, Dr. Mayeux issued a written opinion on September 20, 2004, stating that Ms. Chassion’s epicondylitis was due to causes and conditions characteristic of and peculiar to her trade, occupation, process, or employment as a CSR with Cingular. Dr. Mayeux also issued another report recommending a series of injections over a twelve-month period and, if that were not successful, a surgical release of the affected elbow(s). She reiterated that “[t]he cause of her epicondylitis is overuse and can be related to the type of work that she does as a customer service representative.” In her deposition, Dr. Mayeux testified that seventy-five to eighty percent of the epicondylitis cases that she treats are found in clerical workers, including her own employees who have developed epicondylitis after working long hours on the computer. She stated that, more probably than not, Ms. Chassion’s case was caused by overuse in a clerical type position.

1 ¿Rather than sending Ms. Chassion to a doctor of its choosing, Cingular hired an ergonomist, Dr. Lonn Hutcheson, to evaluate the likelihood that her epicondylitis was due to causes and conditions characteristic of and peculiar to her employment as a CSR. Dr. Hutcheson did not interview Ms. Chassion, but reviewed her deposition, as well as a portion of her work records and medical records. Dr. Hutcheson also inspected the equipment in the workstations at the Cingular call center where Ms. Chassion worked and analyzed the keystroke/mouse input required to process five random incoming calls that day.

Dr. Hutcheson concluded that Cingular provided above average workstations with high-end adjustable chairs and desktops. After comparing a random sampling of Ms. Chassion’s work records with the data provided by a Cingular manager, Dr. Hutche-son also concluded that Ms. Chassion’s overall work output was less than other CSRs. He noted that the mouse-driven equipment used by Cingular required more use of the right hand, whereas Ms. Chassion’s epicondylitis was more pronounced on the left. He concluded that, based upon ergonomics literature, the conditions and characteristics of a CSR have not been shown to definitively bring about epicondylitis, particularly when considering that only one other case had been reported at that facility.

After taking the matter under advisement to review the medical records and post-trial memoranda, the workers’ compensation judge (WCJ) ruled in Ms. Chassion’s favor based upon the “uncharacteristic[ly] clear medical reports” and Dr. Mayeux’s “clear and unambiguous diagnosis.” The WCJ then concluded that penalties and attorney fees were warranted for the employer’s purely defensive action |Kof consulting an expert with no medical credentials and who did not consult with Ms. Chassion before trial.

Indemnity Benefits and Medical Expenses

In its first assignment of error, Cingular raises two issues: that the WCJ erred in finding that Ms. Chassion proved an “accident” occurred or that she is not entitled to recover for an “occupational disease” because the employer proved that her injury was not characteristic of or peculiar to a particular job. We first note that whether or not an accident occurred does not appear to be an issue in this case. In her disputed claim for compensation, Ms. Chassion alleged: “Employee developed pain and numbness in both hands, arms, wrists and shoulders from repetitive use of keyboard for typing and data entry.” (Emphasis added.) The issue identified as unresolved in the mediation report was that “claimant seeks compensability of her diagnosed alleged occupational disease” (Emphasis added.) Further, Dr. Mayeux’s written opinion that Ms. Chassion’s injury is work-related is phrased in terms of the occupational disease statute, as is Dr. Hutcheson’s report wherein he states that he was hired to consider whether Ms. Chassion’s epicondylitis was “due to causes and conditions that were characteristic of and peculiar to her job....” Accordingly, we will confine our discussion to whether or not Ms. Chassion met her burden of proof under the occupational disease statute. See Doumite v. KVHP-Fox 29, 04-427 (La.App. 3 Cir. 10/20/04), 884 So.2d 1283.

Louisiana Revised Statutes 23:1031.l'(B) (emphasis added) defines an occupational disease as “only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” In Hymes v. Monroe Mack Sales, 28,768, pp. 6-7 (La.App. 2 Cir. 10/30/96), 682 So.2d 871, 876 (emphasis added) (case citation. omitted), the court interpreted the above italicized language as follows:

The expression “characteristic of and peculiar to,” as used in § 1031.1 B, does not mean that the disease occurs only in persons engaged in the particular employment and not otherwise found among the general public. Malone & Johnson, Workers’ Compensation Law and Practice, § 220. Rather, it means that the disease must result from conditions and causes present in the employment and not from other causes to which the claimant and everyone else might have been exposed. Stated otherwise, it means that the disease must originate from conditions in the employment that result in a hazard that distinguishes the employment in character from the general run of occupations.

In Lee v. Schumpert, 36,733, p. 10 (La. App. 2 Cir. 1/29/03), 836 So.2d 1214, 1220-21 (emphasis added) (citations omitted), the court described the burden of proof for a claimant asserting an occupational disease as follows:

The claimant asserting an occupational disease must prove, by a preponderance of evidence, a disability related to an employment-related disease, that it was contracted during the course of employment, and that it is the result of the work performed. The causal link between the claimant’s occupational disease and the work-related duties must be established by reasonable probability. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused it. Expert testimony is required to support a finding of an occupational disease.

In Lee, 836 So.2d at 1221, the court concluded that the claimant, an abstractor, had met this burden of proof for epicondyl-itis and carpal tunnel syndrome (CTS) as occupational diseases based upon the expert testimony of her physician “who repeatedly stated that her conditions were more probably than not related to her employment” and who agreed that “her conditions were ‘due to causes and conditions 17characteristic of her employment,’ ” notwithstanding the doctor’s occasional use of the word “possibility” in his testimony. Citing the quality of this evidence, the court distinguished Lee from another case, Fite v. Louisiana Title Co., 36,393 (La. App. 2 Cir. 9/18/02), 828 So.2d 165 (emphasis added), in which the appellate court reversed a judgment in favor of a title abstractor claiming the same two conditions as occupational diseases. The court in Lee, 836 So.2d at 1221, noted that Fite presented “the lack of evidence that the claimant was exposed to hazards peculiar to abstractors, and the lack of expert medical opinion that her job duties caused the CTS and epicondylitis.”

Cingular argues that it proved that Ms. Chassion’s epicondylitis cannot be considered as a characteristic of and peculiar to her employment as a CSR based upon Dr. Hutcheson’s ergonomic analysis of the conditions at the Cingular call center where she worked. However, Dr. Hutche-son admitted at trial that he was not qualified to render a medical opinion on the causation of her injuries. Dr. Mayeux, however, was adamant that Ms. Chassion’s condition was work-related and that it was characteristic of and peculiar to her employment as clerical worker who uses a telephone and a keyboard for data entry. Dr. Mayeux also provided testimony as to the incidence of epicondylitis in the clerical field by stating that, based upon her experience as an orthopedic surgeon, seventy-five to eighty percent of her epicondylitis patients are clerical workers. We find that Dr. Mayeux’s testimony is similar to the testimony in Lee, 836 So.2d 1214, that was found to sufficiently support a claim of epicondylitis and CTS as occupational diseases characteristic of and |speculiar to the employment of an abstractor. Accordingly, we find no error in the WCJ’s acceptance of Dr. Mayeux’s opinion over that of Dr. Hutcheson.

Penalties and Attorney Fees

In its second assignment or error, Cingular argues that the WCJ erred in awarding penalties and attorney fees, contending that it reasonably controverted the claim under La.R.S. 23:1201(F)(2) by hiring Dr. Hutcheson to perform an ergonomic analysis. In awarding a total of $6,000.00 in penalties and $7,000.00 in attorney fees, the WCJ characterized the employer’s actions as “purely and simply defensive” in light of Dr. Mayeux’s unambiguous diagnosis, stating that it “in no way comported with either the spirit or the law governing the treatment of injured workers. Preparing a defense is certainly proper, but it is not a substitute for an investigation.”

The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding must not be disturbed on appeal absent manifest error. “To avoid penalties and attorneys fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits.”

Rose v. Maison Deville Care Center, 05-1307, p. 5 (La.App. 3 Cir. 4/5/06), 927 So.2d 625, 628-29, writ denied, 06-1054 (La.9/1/06), 936 So.2d 205 (citation omitted) (quoting George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209).

Cingular contends that it sufficiently investigated this claim by hiring Dr. Hutcheson and that its denial is supported by his conclusions. However, Dr. Hutche-son did not render his report until June of 2005, almost one year and a half after the claim was initially denied in December of 2003. In his oral reasons, the WCJ indicated that Dr. Mayeux’s written opinion of September 30, 2004, that was forwarded to Cingular on October 5, 2004, should have prompted the employer to | asend Ms. Chassion to its choice of physician, rather than to hire a non-medical expert who did not consult with her prior to trial. We find no error in this reasoning, given the emphasis that the jurisprudence places on medical evidence in occupational disease cases. Accordingly, the award of penalties and attorney fees is affirmed. We further award additional attorney fees of $1,500.00 for Ms. Chassion’s defense of this appeal.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed and amended to award additional attorney fees of $1,500.00. Costs of this appeal are assessed to Defendant/Appellant, Cingular Wireless.

AFFIRMED AS AMENDED.

      . In Fite v. Louisiana Title Co., 02-2607 (La.6/27/03), 852 So.2d 983, the supreme court concluded that medical reports may serve as the required expert testimony for proof of disputed medical matters.

      . Upon remand from the supreme court, the second circuit again ruled in favor of the employer in Fite v. Louisiana Title Co., 36,393 (La.App. 2 Cir. 10/24/03), 859 So.2d 259, writ denied, 03-3230 (La.2/20/04), 866 So.2d 829, citing one treating physician's lack of knowledge as to what the claimant’s job entailed and the medical opinions of two other physicians that the claimant's symptoms were not work related.


author: THIBODEAUX, Chief Judge.

text:
    Louis STEMLEY v. Wayne DESCANT, et al.
    No. 06-716.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Rehearing Denied Dec. 13, 2006.
    Anselm Nnaemeka Nwokorie, Smith & Nwokorie, Farmerville, LA, for Defendants/Appellees — J. Firmin, Capt. Blaine Villmarette, Wayne Descant, Jason Paul, Tom Perkins, Dr. Quyen Tran, Connie Lemoine, Major Anthony Corner, Major Billy Tigner, Major Donald Ducote, Cindy Soileau, Aaron Gaspard, Michael Coco, and Lillie Littleton.
    Laurel Irene White, Assistant Attorney General, Alexandria, LA, for Defendant/Appellee — State of Louisiana.
    Louis Stemley (pro se).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

hPlaintiff, Louis Stemley (Mr. Stemley), filed this appeal pro se from the trial court judgment which dismissed his civil suit against fifteen named defendants (Defendants) who are all employees of the Louisiana Department of Public Safety and Corrections (DPSC) and. who. work at the Avoyelles Parish Correctional Center where Mr. Stemley was incarcerated. The judgment dismissed his lawsuit because he failed to-timely file for judicial review pursuant to the procedures and timelines specified in La.R.S. 15:1177, et seq. For the following reasons, we affirm the judgment of the trial court dismissing Mr. Stemley’s civil action.

I.

ISSUE

While Mr. Stemley complains of several errors, the primary issue to be decided by this appeal is whether the trial court committed error by determining that Mr. Stemley filed his civil action in district court seeking judicial review of several complaints concerning the conditions of his confinement after the peremptory period for filing that complaint had already expired.

II.

FACTS

Mr. Stemley began his incarceration at the Avoyelles Parish Correctional Center in February of 1999. He alleges that soon after his arrival he was subjected to a pattern and practice of harassment and false charges by the Defendants. Based on those charges, medications found in Mr. Stemley’s possession were confiscated, his work assignment was changed, and he lost some of the time he had earned for good behavior. He further alleges that the actions of the Defendants were racially motivated.

|aMr. Stemley filed six Requests for Administrative Remedy based on these grievances using the prison administrative remedy process pursuant to the Corrections Administrative Remedy Procedure (CARP), found in La.R.S. 15:1171, et seq. Under CARP, the process for following through on an inmate’s Request for Administrative Remedy has three parts. If the inmate’s Request for Administrative Remedy is denied at all three stages of the process, the statute allows for the inmate to file a civil action in the Nineteenth Judicial District Court. La.R.S. 15:1177(A). On June 8, 2000, Mr. Stem-ley’s final appeal to the Disciplinary Board of the DPSC on the last of his six requests, appeal number HDQ-9942, AVC-99-0465, was denied in the third-step review. Mr. Stemley was given notice of that ruling on June 13, 2000, and he signed a receipt stating that he received the notice of that ruling. He then filed a petition for damages in district court against the Defendants on September 13, 2000.

The Defendants filed a Peremptory Exception of Failure to Timely Seek Judicial Review. The trial court granted that exception ex parte. Mr. Stemley appealed that judgment, which dismissed his civil action. This court vacated the trial court’s judgment because the record did not contain an actual copy of the Disciplinary Board’s June 8, 2003 ruling, nor did it contain evidence of the date the ruling was signed. The case was remanded to the trial court for further hearings. The Defendants re-filed the exception and introduced the relevant Disciplinary Board ruling into the record. The Defendants also produced all of the documents to Mr. Stemley.

The trial court held a hearing on the exception. Following the arguments of both parties, the trial court granted the exception and once again dismissed Mr. laStemley’s lawsuit. Mr. Stemley timely filed an appeal of that judgment with this court.

III.

LAW AND DISCUSSION

Standard of Review

When an inmate at a DPSC institution has a complaint regarding the conditions of his or her confinement, they must first exhaust all of their administrative remedies provided by law. La.R.S. 15:1171, et seq. Causes of action which fall within the purview of this statute are enumerated and explained as follows:

The department or sheriff may also adopt, in accordance with the Administrative Procedure Act, administrative remedy procedures for receiving, hearing, and disposing of any and all complaints and grievances by adult or juvenile offenders against the state, the governor, the department or any officials or employees thereof, the contractor operating a private prison facility or any of its employees, shareholders, directors, officers, or agents, or a sheriff, his deputies, or employees, which arise while an offender is within the custody or under the supervision of the department, a contractor operating a private prison facility, or a sheriff. Such complaints and grievances include but are not limited to any and all claims seeking monetary, injunctive, declaratory, or any other form of relief authorized by law and by way of illustration includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies, or statutes. Such administrative procedures, when promulgated, shall provide the exclusive remedy available to the offender for complaints or grievances governed thereby insofar as federal law allows. All such procedures, including the adult and juvenile offender disciplinary process, promulgated and effective prior to June 30, 1989, shall be deemed to be the exclusive remedy for complaints and grievances to which they apply insofar as federal law allows.

La.R.S. 15:1171(B) (emphasis added) (footnote omitted).

If an inmate has exhausted the three-step administrative process and still seeks redress of his or her concerns, La.R.S. 15:1177 provides that the offender may then seek judicial review of the final administrative decision. The pertinent section of the statute states:

§ 1177. Judicial review of administrative acts; exception
A. Any offender who is aggrieved by an adverse decision, excluding decisions relative to delictual actions for injury or damages, by the Department of Public Safety and Corrections or a contractor operating a private prison facility rendered pursuant to any administrative remedy procedures under this Part may, within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court or, if the offender is in the physical custody of the sheriff, in the district court having jurisdiction in the parish in which the sheriff is located, in the manner hereinafter provided....

La.R.S. 15:1177(A). When this court vacated the judgment of the trial court dismissing Mr. Stemley’s claims in 2003, it was based on the fact that the record did not contain the actual Disciplinary Board document stating that Mr. Stemley’s third-step review of his claims was denied. Stemley v. Descant, 03-662 (La.App. 3 Cir. 11/5/03), 858 So.2d 841. At the March 28, 2006 hearing on the Defendants’ Motion to Re-Set the Peremptory Exception of Failure to Timely Seek Judicial Review, that document was introduced into the record. The record also contains proof that Mr. Stemley received a written copy of that ruling on June 13, 2000. Therefore, the record is now clear that when Mr. Stemley filed his petition for judicial review on September 13, 2000, he filed it past the thirty-day deadline outlined by La.R.S. 15:1177.

Mr. Stemley argues that his claims are exempted from the thirty-day deadline. He argues that his claims against the Defendants are tort claims because he is asking for damages due to violation of his rights. In Pope v. State, 99-2559 (La. 6/29/01), 792 So.2d 713, the Louisiana Supreme Court held that certain provisions of CARP violated the Louisiana constitution because those provisions divested district courts of original jurisdiction over tort claims filed against the DPSC.

In particular, the supreme court found objectionable those provisions that “allow[ed] the [DPSC], in tort actions, to effectively adjudicate its own delictual liability, and then require[d] the district courts to give ‘manifest error rule’ deference to that adjudication.” Id. at 721 (footnote omitted). However, the supreme court also recognized in Pope that the legislature “is free to enact procedures for initial submission of tort claims by prison inmates to an administrative agency for review, ... as long as the action of the administrative agency does not constitute the exercise of original jurisdiction.” Id. at 720.

Ngo v. Estes, 04-186, p. 2 (La.App. 3 Cir. 9/29/04), 882 So.2d 1262, 1263, quoting Pope, 792 So.2d at 720-21.

All of Mr. Stemley’s claims stem from his complaints about how different prison employees treated him. Louisiana Revised Statutes 15:1181 defines civil actions with respect to prison conditions as “any civil proceeding with respect to the conditions of confinement or the effects of the actions by government officials on the lives of persons confined in prison.... ” La.R.S. 15:1181(2). Unlike the plaintiff in Pope, Mr. Stemley received no actual injury, nor was he the victim of an accident. His complaints arise from his dissatisfaction with the way he was treated by prison personnel. These kinds of complaints fall squarely within the definition of complaints regarding conditions of confinement.

The injuries suffered by the inmate in Pope had nothing to do with disciplinary or administrative remedy proceedings, but were caused by an accident which occurred while performing demolition work on a separate correctional facility. In contrast, Peterson’s alleged “tort” claims arise directly from the disciplinary and administrative remedy proceedings of the DOC and not from an independent accident.

\ (Peterson v. Austin, 36,365, p. 5 (La.App. 2 Cir. 12/11/02), 836 So.2d 235, 238, writ denied, 03-510 (La.1/30/04), 865 So.2d 70.

“[T]he nature of a pleading is determined by its substance and not its caption. See La. C.C. P. art. 865; Revere v. Reed, 95-1913 (La.App. 1 Cir. 05/10/96), 675 So.2d 292.” Id. at 237. All of Mr. Stem-ley’s claims fall squarely within the definition of conditions of confinement and are, therefore, not tort claims. His suit in district court was based on the denial of the third-step review of the last of his Requests for Administrative Remedy. His claim was not based on an action or omission which caused him bodily harm and not subject to the limitations discussed in Pope. His claim is, therefore, subject to the time limitation set in La.R.S. 15:1177. Since he did not file his claim in district court within thirty days of receiving notice of the denial of his third-step review, his claim was properly dismissed.

Mr. Stemley’s Other Issues

Defendants’ Second Motion to Continue and Reset Hearing cm Peremptory Exception of Failure to Timely Seek Judicial Review was Moot Due to Their Failure to Seek Rehearing or Review by the Louisiana Supreme Court

The Defendants are not required to file an appeal of the 2003 judgment of this court. Appeals are discretionary, not mandatory. “The judgment of a court of appeal becomes final and definitive if neither an application to the court of appeal for rehearing nor an application to the supreme court for a writ of certiorari is timely filed.” La.Code Civ. P. art. 2166(A). Since the Defendants neither filed an application to this Court for a rehearing nor with the supreme court for a writ of certiorari, the 2003 judgment is a final, nonappealable judgment. That judgment vacated the district court’s initial judgment of dismissal and remanded the case for further hearings. Upon rehearing, the Defendants properly requested a rehearing on |7the peremptory exception. The process followed by the Defendants was correct. Mr. Stemley’s argument is meritless.

The Trial Court Erred in Conducting the Hearing on Defendants’ Exception in Absence of Their Compliance With the Subpoena Duces Tecum

There is no evidence of a subpoena duces tecum filed by Mr. Stemley anywhere in the record. Furthermore, Mr. Stemley was provided with the Disciplinary Board’s June 8, 2000 decision denying his third-step review of his complaint on June 13, 2000, and at the March 28, 2006 hearing at the district court. This argument is also meritless.

IV.

CONCLUSION

While Mr. Stemley exhausted all of his administrative remedies based on his complaints about his conditions of confinement while he was an inmate at the Avoyelles Parish Correctional Center, he did not timely file his petition for review with the district court. We affirm the district court’s judgment dismissing his lawsuit. All costs of this appeal are assessed to Mr. Stemley.


author: EZELL, Judge. PETERS, J.,

text:
    STATE of Louisiana v. Darrell Brent WHATLEY.
    No. 2006-0316.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Raymond J. Lejeune, Assistant District Attorney, Thirteenth Judicial Court, Ville Platte, LA, for Appellee, State of Louisiana.

      Anthony C. Dupré, Ville Platte, LA, for Defendant/Appellant, Darrell Brent What-ley.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   EZELL, Judge.

11 This matter is now before us for the fourth time. As was the case in the first three appeals, the Defendant, Darrell Brent Whatley, appeals the sentence imposed upon him by the trial court.

DISCUSSION OF THE RECORD

The criminal charge in this matter arises from an incident which occurred in the victim’s Evangeline Parish home on June 10, 2002. As a result of the events of that day, the State of Louisiana charged the defendant by bill of information with the offense of indecent behavior with a juvenile, a violation of La.R.S. 14:81. After a jury convicted the Defendant of the offense charged, the trial court sentenced him to serve seven years at hard labor, suspended two of the seven years, and ordered that he be placed on three years supervised probation after his release from prison. The Defendant appealed, asserting only that the trial court imposed an excessive sentence. This court agreed. State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955 (Whatley I). Accordingly, we vacated the Defendant’s original sentence and remanded the matter to the trial court for resentencing. Id.

On remand, the trial court sentenced the Defendant to serve five years at hard labor instead of seven and suspended eighteen months of the sentence rather than two years. The Defendant again appealed, asserting that the new sentence was excessive. In an unpublished opinion, we again vacated the sentence and remanded the matter for resentencing. State v. Whatley, 04-724 (La.App. 3 Cir. 12/8/04), 888 So.2d 1166 (Whatley II). However, in doing so, we did not reach the merits of the appeal. Instead, we recognized that, in suspending eighteen months of the sentence imposed, the trial court failed to place the Defendant on probation as required by La.Code Crim.P. art. 893.

| .¿On remand, the trial court sentenced the Defendant to serve five years at hard labor, suspended eighteen months of that sentence, and cured the error recognized in Whatley II by placing the Defendant on three years supervised probation to begin upon his release from prison. The Defendant appealed, again raising the excessive sentence argument. In another unpublished opinion, we again vacated the sentence and remanded the matter for resen-tencing because of errors patent in the sentencing process. State v. Whatley, 05-221 (La.App. 3 Cir. 12/30/05), 918 So.2d 1218 (Whatley III). Again, we did not reach the merits of the appeal.

On remand, the trial court sentenced the Defendant to the same sentence as in Whatley III and addressed the errors patent recognized in that opinion. Immediately after sentencing, the Defendant entered an oral motion to reconsider the sentence, which the trial court denied. Thereafter, the Defendant perfected this appeal, asserting four assignments of error:

1. The Trial Court erred in imposing a sentence of five (5) years with the Department of Corrections, eighteen (18) months of which would be suspended, which sentence is excessive and in violation of Article I, Section 20 of the Louisiana Constitution;
2. The Trial Court erred in failing to comply with the mandatory provisions of Louisiana Code of Criminal Procedure Article 894.1 and failed to give adequate consideration to the substantial mitigating circumstances present in this case;
3. The Trial Court erred in denying Appellant’s Motion to Reconsider Sentence!;]
4. The Court’s sentence of 5 years together with 3 years probation constitutes a sentence of 8 years when the maximum sentence for the defendant’s crime is 7 years and the sentence is therefore illegal.

^ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are two errors patent.

First, the trial court failed to establish a payment plan for the restitution ordered as a condition of probation. “This court has found error patent when the trial court fails to establish a payment plan for fees ordered as conditions of probation.” State v. Theriot, 04-897, 04-898, p. 7 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016, 1021 (citations omitted). In the opinion wherein this court remanded the present case for resentencing, this court specifically instructed the trial court that if it ordered restitution as a condition of probation it “should specifically identify the party to whom the restitution is due, the amount of that restitution, and a payment schedule for that restitution.” State v. Whatley, an unpublished opinion cited at 05-221, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1218 (citation omitted). Although the trial court identified the party to whom restitution is due (the victim’s family) and set the amount of restitution ($1,651.44), it failed to establish a payment schedule. Thus, the trial court is instructed to establish a specified payment schedule for any restitution imposed as a condition of probation.

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including indecent behavior with a juvenile. Here, the trial court failed to deny the Defendant diminution eligibility under La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court stated:

We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La. Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.

Here, the trial court’s failure to deny diminution of sentence renders the Defendant’s sentence illegally lenient. Therefore, we amend the Defendant’s sentences to reflect that diminution eligibility is denied pursuant to La.R.S. |415:537(A). We instruct the trial court to make a notation in the minutes reflecting the amendment.

OPINION

The first three assignments of error address the sentencing procedure of the trial court, and, because they are interrelated, we will consider them together. However, in doing so, we initially note that we are limited in our review of these assignments of error because the Defendant’s oral motion to reconsider his sentence contained no specific basis for the motion. While La.Code Crim.P. art. 881.1(B) allows for an oral motion at the time of sentencing, the motion must still comply with La.Code Crim.P. art. 881.1(E)(emphasis added), which provides:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

The failure to include any specific ground for reconsideration, including particularly the trial court’s failure to comply with the provisions of La.Code Crim.P. art. 894.1, relegates this court to consideration of “a bare claim of excessiveness” when reviewing the first three assignments of error. Whatley, 867 So.2d at 958. Despite being relegated to this basic claim, we find merit in the Defendant’s assignments of error.

The initial seven-year sentence was the maximum incarceration sentence that could be imposed for the offense of indecent behavior with a juvenile. La.R.S. 14:81(C). In vacating that sentence in Whatley I, we set out the standard of appellate review of a claim for excessive sentence as follows:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of | alaw reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, [writ denied, 99-433 (La.6/25/99), 745 So.2d 1183,] stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

Whatley, 867 So.2d at 958-59(first two alterations in original).

We then considered the Defendant’s sentence with regard to the three factors enunciated in the Lisotta decision with the following analysis:

The offense of indecent behavior with a juvenile is a heinous crime. It involves the use of innocent children to satisfy the sexual desires of an adult and requires the commission of a “lewd or lascivious act” upon, or in the presence of the child. La.R.S. 14:81. In this case, the defendant fondled the victim’s breasts and buttocks. Clearly, society finds such activity inexcusable. Still, the legislature has seen fit to limit the incarceration penalty to a maximum of seven years at hard labor, and as previously stated, the maximum penalty is reserved for the worst offenders. Farhood, 844 So.2d 217.
The Defendant was fifty-three years old at the time of the offense and apparently had led a crime-free life. While the evidence, indicates that he did use some physical restraint of the victim, the offense entailed no physical violence. Additionally, despite the clear opportunity to do so, the defendant did not attempt to press his physical and timing | ^advantage on his victim. Instead, after she rebuffed his advances, he left. The nature of the Defendant’s touching, although inexcusable, is not compatible with the degree of touching associated with those cases in which the courts have chosen to render a maximum sentence.
In this case, the trial court “considered deeply the psychological impact” the defendant’s actions had on the victim. However, the record reflects that the victim admitted that she was already “somewhat depressed” at the time of the incident because of the recent deaths of her great-grandmother, uncle, and a close family friend. In fact, the victim had seen a physician in April of 2002, or two months before the offense, for “depressive behavior.”

Id. at 959.

In concluding that the Defendant’s offense did not warrant a maximum sentence, we considered a number of decisions upholding maximum or near-maximum sentences imposed on an individual convicted of indecent behavior with a juvenile and concluded that the acts justifying those sentences were far more severe than the acts supporting the Defendant’s conviction.

We supplemented this list in Whatley II with cases involving sex crimes against a child wherein the sentences ranged from five years at hard labor to one and one-half years at hard labor. All of these cases also included acts far more severe than those 17supporting the Defendant’s conviction. Additionally, we made the following comment concerning the trial court’s obligation in resentencing the defendant:

Because we vacate the sentence in its entirety, the trial court is not bound to merely correct the restitution error and resentence the defendant to the same five-year sentence. Instead, the trial court is free to formulate a sentence that is consistent with the prior instructions of this court.... If the trial court concludes that an incarceration sentence is applicable, it should consider the factual situations in the cases cited in Whatley, 867 So.2d 955, and compare the sentences imposed in those matters to the undisputed facts of this litigation.

Whatley, 05-0221, p. 8 (La.App. 3 Cir. 12/30/05), 918 So.2d 1218.

The current sentence under review is within the statutory limits of La.R.S. 14:81(C). The nature of the offense of indecent behavior with a juvenile generally brings to mind the type of activity depicted in the decisions referenced in our prior opinions. However, formulating a sentence for one whose acts are similar to those of the Defendant in this particular case is much more difficult. Applying the Lisotta factors to the sentence at issue, the first two have not changed. The offense is still a heinous crime, and such activity is inexcusable. Additionally, the Defendant’s background is still the same except that he is four years older.

To effect an analysis of the third Lisotta factor, we must again evaluate the evidence supporting the particular elements of the offense at issue. In this case, the Victim testified that, when the Defendant initially entered her home, he hugged and kissed her. The Victim testified that, after the Defendant followed her into the Ubedroom, he commented with regard to the content of the movie she was watching and that, while sitting on the bed with her between his legs, he rubbed her back and neck and touched the side of her breasts through her clothing. As they got up, the Defendant hugged her and placed his hand into the back of her pants. She broke away, and, when she started to leave the house, the Defendant left.

As it applies to this case, the offense of indecent behavior with juveniles is defined in La.R.S. 14:81(A) as “the commission of any lewd or lascivious act upon the person ... of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person.” As stated in State v. Sturdivant, 27,680, p. 6 (La.App. 2 Cir. 2/28/96), 669 So.2d 654, 658, “[t]he word ‘lewd’ means lustful, indecent and signifies that form of immorality which relates to sexual impurity carried on in a wanton manner,” and “[t]he word ‘lascivious’ means tending to incite lust, indecent, obscene and tending to deprave the morals in respect to sexual relations.”

These are very broad definitions, but we do know from the jurisprudence that a kiss, even a “french kiss,” does not constitute a lewd or lascivious act. State v. Louviere, 602 So.2d 1042 (La.App. 4 Cir. 1992), writ denied, 610 So.2d 796 (La. 1993). Specifically, “[w]ithout genital contact or any other obscene or indecent act or repeated occurrence, [french kisses] fall short of the statutory and judicial requirements of the crime [of indecent behavior with juveniles].” Id. at 1044-45. | ¡/Thus, only the acts in the bedroom form the basis of this criminal offense. These acts go beyond those cited in State v. Louviere.

As previously stated, the decision in Li-sotta instructs us to review the sentences for similar crimes in determining whether the sentence imposed is excessive. While we might personally believe that the offense deserves a more severe penalty, we are bound by the parameters set by the legislature. In this case, La.R.S. 14:81 provides no minimum sentence and provides for a maximum incarceration sentence of seven years at hard labor. The trial court responded to our opinion that the offense before us did not warrant the maximum sentence by sentencing the Defendant to two years less than the maximum and suspending eighteen months of that sentence.

The State admits in brief that all of the cases providing sentences equal or greater than that imposed on the defendant involved individuals engaged in much more serious sexual activity with their victims than is present in the instant case. Still, the State suggests that “[t]his fact alone does not constitute excessive punishment” absent a showing of a manifest abuse of the trial court’s discretion. We agree with that comment.

In support of this sentence, the trial court stated that it considered the contents of the presentence investigation report, input from the families of the victim and the Defendant, and the guidelines set forth in La.Code Crim.P. art. 894.1. The trial court also stated its concern with the psychological impact the offense had on the victim. Thus, we uphold the sentence in this matter as it is not constitutionally excessive.

We further find that the sentence imposed is not an illegal sentence, in that, this court has specifically held that “the probationary period is not counted toward the |inmaximum term for which a Defendant may be imprisoned for an offense.” State v. Dixon, 02-1265, p. 4 (La.App. 3 Cir. 3/5/03), 839 So.2d 1141, 1144. We also note that “[A] sentence committing a prisoner to the Department of Corrections is necessarily at hard labor. LSA-R.S. 14:81(C).” State v. Lisenby, 534 So.2d 996, 998 (La.App. 3 Cir.1988).

DISPOSITION

For the foregoing reasons, Defendant’s sentence is amended to reflect that diminution eligibility is denied pursuant to La. R.S. 15:537. Otherwise, the sentence is affirmed. The case is remanded for the trial court to establish a specified payment schedule for any restitution imposed as a condition of probation.

SENTENCE AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

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

PETERS, J.,

concurs in part and dissents in part.

hThe majority concludes that the trial court erred in failing to establish a specific payment schedule for the ordered restitution, and that it erred in failing to deny diminution of sentence as required by La. R.S. 15:537(A). I agree with those conclusions. I further agree with the majority’s well-written analysis of the issue now before us. What I respectfully do not agree with is the majority’s conclusion that, based on the record before us, the sentence imposed in not excessive. Our appellate review obligation is set by the statute at issue and by the jurisprudence, and my review of the record causes me to conclude that it does not support the sentence imposed.

Louisiana Revised Statutes 14:81 (C) provides for a maximum sentence for one convicted of indecent behavior with a juvenile of not more than seven years, to be served with or without hard labor. The statute imposes no minimum and, thus, Defendant’s sentence is within the statutory range. However, it is certainly within the higher range of possible sentences.

As individuals we can conclude that the acts of Defendant are so reprehensible that they deserve the maximum or near-maximum sentence, but as judges we must always recognize that “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. [ p3/25/03), 844 So.2d 217, 225. Even the State of Louisiana (State) acknowledges that this case does not remotely resemble the most serious of violations of this particular statute, or that Defendant can be categorized as one of the worst offenders.

As pointed out by the majority, our jurisprudential guidance in reviewing a sentence is set forth in State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, wrii denied, 99-433 (La.6/25/99), 745 So.2d 1183, and there is no dispute concerning the underlying facts as they relate to the three factors to be considered. First, we recognize that indecent behavior with a juvenile is a heinous crime and such activity is inexcusable in our society. Next, we have to acknowledge that Defendant led a crime-free life for the fifty-three years before this offense, that the offense entailed no physical violence, and that he immediately retreated when rebuffed by the victim. Finally, with regard to the review of sentences imposed for similar crimes, the State also agrees that all prior reported cases imposing a sentence of this magnitude on a defendant for indecent behavior with a juvenile involved activity of a much more serious nature than did the instant case.

Notwithstanding the fact that it agrees that the offense at issue is not one of the most serious violations, that Defendant is not one of the worst offenders, and that the reported cases suggest that the imposed sentence is excessive, the State asserts that because the trial court stated that it considered the content of the pre-sentence investigation report, the input from the families of the victim and of Defendant, and the sentencing guidelines set forth in La.Code Crim.P. art. 894.1, it did not abuse its discretion in sentencing Defendant to a sentence that is within thirty percent of the maximum sentence authorized. Had the trial court stated how it relied on those considerations in imposing sentence, I might agree with the majority’s conclusion. | ¡¡However, the record supports only the fact that the trial court stated that it had considered those factors — not, how those factors affected the imposition of sentence.

The guidelines to be applied in the sentencing process are found in La.Code Crim.P. art. 894.1 which provides in part that the trial court “should impose a sentence of imprisonment” in any of the following situations:

(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.

La.Code Crim.P. art. 894.1(A).

Additionally, La.Code Crim.P. art. 894.1(B) sets forth thirty-three factors to be considered in determining whether sentences imposed on defendants convicted of offenses which do not fit the criteria of La.Code Crim.P. art. 894.1(A) should be suspended and the defendant placed on probation. However, application of either of these provisions requires that a factual basis support that application. Louisiana Code of Criminal Procedure Article 894.1(C) provides that “[t]he court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” (Emphasis added).

The purpose of obligating a trial court to complete the sentencing record by complying with La.Code Crim.P. art. 894.1(C) “is to insure that each sentence is individualized to the offender and the offense.” State v. Davis, 511 So.2d 91, 92 (La.App. 3 Cir.1987). Although the trial count need not articulate every | circumstance or use La.Code Crim.P. art. 894.1 as a checklist, the record should sufficiently establish that the trial court considered the guidelines in particularizing a defendant’s sentence. State v. Anderson, 95-1688 (La. App. 3 Cir. 5/8/96), 677 So.2d 480.

In addition to the facts already stated, other evidence presented in the sentencing proceedings arising from Whatley I established that Defendant is parole eligible and there is no impediment to him complying with conditions of probation. Despite this uncontradicted evidence, the trial court sentenced Defendant by doing nothing more than referencing the three factors found in La.Code Crim.P. art. 894.1(A). Thus, despite the State’s assertions to the contrary, it is clear from the record that the trial court did not take into consideration the specific content of the presen-tence investigation report.

Because the trial court concluded that an incarceration sentence was required, it did not address any of the thirty-three factors found in La. Code Crim.P. art. 894.1(B), other than to say that it “considered deeply the psychological impact” Defendant’s actions had on the victim. However, the victim did not testify at the sentencing hearing, and the basis for this conclusion came from the victim’s mother. As pointed out in Whatley I, it is uncon-tradicted that the victim was already suffering from depressive behavior before the offense.

At the first and second resentencing hearings, the trial court again considered only La.Code Crim.P. art. 894.1(A) in imposing the new sentence. Again, the trial court failed to comply with the provisions of La.Code Crim.P. art. 894.1(C).

|sThe net effect of all prior sentencing hearings is an articulation that all three factors of La.Code Crim.P. art. 894.1(A) are applicable, but no statement as to why they are applicable. Absent compliance with La.Code Crim.P. art. 894.1(C), the sentence constitutes nothing more than a finding that any conviction for this offense requires an incarceration sentence that is within thirty percent of being the maximum allowable. Thus, it is not a sentence that is individualized for this particular defendant.

I would set aside the sentence for the fourth time, finding that the record still does not provide a factual basis to show how this particular defendant is deserving of a sentence equal to that imposed on the much more egregious offenders.

      . State v. Delgado, 03-46 (La.App. 3 Cir. 4/30/03), 845 So.2d 581; State v. Kirsch, 02-993 (La.App. 1 Cir. 12/20/02), 836 So.2d 390, writ denied, 03-238 (La.9/5/03), 852 So.2d 1024; State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36; State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183; State v. Armstrong, 29,942 (La.App. 2 Cir. 10/29/97), 701 So.2d 1350.

      . These ranged from being found naked in bed with a thirteen-year-old female to insertion of the offender's fingers in the victim’s vagina.

      . Specifically, the Defendant hugged and kissed the victim, told her he loved her, rubbed the sides of her breasts, and ultimately slipped his hands into the back of her pants.

      . State v. Logwood, 37,178 (La.App. 2 Cir. 5/14/03), 847 So.2d 115; State v. Jones, 34,863 (La.App. 2 Cir. 8/22/01), 794 So.2d 107, writ denied, 01-2648 (La.8/30/02), 823 So.2d 938; State v. Norwood, 34,584 (La.App. 2 Cir. 5/9/01), 789 So.2d 614, writ denied, 01-1618 (La.4/26/02), 813 So.2d 1100; State v. Smith, 34,325 (La.App. 2 Cir. 12/20/00), 775 So.2d 640; State v. Collins, 32,409 (La.App. 2 Cir. 9/22/99), 763 So.2d 618; State v. Castillo, 97-595 (La.App. 5 Cir. 11/25/97), 705 So.2d 751, writ denied, 97-3202 (La.5/1/98), 805 So.2d 200; State v. Douglas, 28,518 (La.App. 2 Cir. 8/21/96), 679 So.2d 469; State v. Broussard, 94-40 (La.App. 3 Cir. 11/23/94), 649 So.2d 726; State v. Wheat, 612 So.2d 176 (La.App. 1 Cir. 1992).

      . These ranged from fondling a child’s vaginal area, oral sex and digital penetration to actual sexual intercourse.

      .In its questioning of the Victim, the State attempted to suggest that the Defendant kissed the Victim a number of times. However, the Victim never responded to these suggestions, and the gist of her testimony is that the Defendant kissed her only one time and on the lips. Additionally, other than to say that the kiss was on the lips, the Victim did not elaborate on the nature of the kiss. The Defendant acknowledged that he kissed the Victim, but stated that he kissed her on the cheek.

      . According to the Victim, the movie depicted a fifteen-year-old girl who had become pregnant. She testified that the Defendant made comments to the effect that she should not become involved in sexual activity, but that, if she did, she should come to him.

      . Although in Whatley, 867 So.2d at 956, 959 (alteration in original) this court described this activity as ''fondl[ing] the victim’s ... buttocks,” the victim described the Defendant's action as only "kind of slipping] his hands in the back of [her] pants.”

      . As a first offender, the defendant is eligible for a probationary sentence. La. Code Crim.P. art. 893(A).

      . Evidence introduced in the first resentenc-ing proceedings established that, by the time of the original sentencing proceeding, the victim had returned to a full social life without any apparent long-range devastating effects from the offense.


author: GENOVESE, Judge.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY v. Darryl James LYONS, Sr., et al.
    No. 06-746.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Rehearing Denied Dec. 13, 2006.
    Kirk L. Landry, Brian W. Hightower, Keogh, Cox & Wilson, Ltd., Baton Rouge, Louisiana, John R. Keogh, Sulphur, Louisiana, for Plaintiff/Appellant: Trinity Universal Insurance Company.
    James L. Pate, Jason T. Reed, LaBorde & Neuner, Lafayette, Louisiana, for Defendant/Appellee: City of Westlake.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Following an incident of arson involving its insured, American Legion Post # 370 (American Legion), Plaintiff, Trinity Universal Insurance Company (Trinity), filed a subrogation claim against Defendant, the City of Westlake (City), to recoup the amounts it paid to its insured. The City filed a motion for summary judgment on the ground that it had no legal duty to prevent the act of arson. The trial court granted the City’s motion for summary judgment and Trinity appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The instant litigation was the subject of a previous appeal to this court, wherein we summarized the facts as follows:

In 1999, the Westlake Fire Department instituted a program for junior volunteer firefighters. These young volunteers received essentially the same training that adult volunteer firefighters received. Beginning in early March 2000, James [Lyons, Jr. (Lyons), a junior volunteer firefighter with the City,] started three fires in Westlake, the last being the fire at the American Legion. During that same time, he stole payroll checks and gas cards from the Westlake Fire Department. The record indicates that [Lyons] had been a volunteer for approximately fifteen months when he set the fire at the American Legion.
[Lyons’] identity as the arsonist came to light when Jarrod [sic] Roy [ (Jared) ], his friend and co-volunteer, related his suspicions that [Lyons] set the fire at the American Legion to the police during its investigation of the fire. Jarrod [sic] had related his suspicions to [Jacques Picou (Picou),] the assistant fire ehief[,] before the fire. The police questioned [Lyons], and he confessed that he started it. He also confessed to starting the other two fires.

Trinity Universal Ins. Co. v. Lyons, 04-1494, p. 1 (La.App. 3 Cir. 3/2/05), 896 So.2d 298, 299.

Following the fire, and in accordance with its subrogation rights set forth in the fire insurance policy, Trinity filed suit against Lyons, his parents, and the City. Summary judgment was later granted in favor of Trinity against Lyons and his parents | ¡¡on the issues of liability and damages. Thus, the claims which remained were those asserted by Trinity against the City.

Trinity asserted liability against the City on three grounds: “1) the City had a duty to conduct psychological testing on junior volunteer firefighters; 2) the City had a duty to act on [Jared’s] suspicions when he related them to the assistant fire chief; and 3) the City was vicariously liable for [Lyons’] arson under La.Civ.Code art. 2320.” Id. at 300. The City filed its first motion for summary judgment, which the trial court granted, finding no liability under the first and third grounds set forth above. The trial court also found there was not sufficient time for the City to have taken action based upon the suspicions of Jared. On appeal, this court reversed the trial court’s ruling, finding that “[t]here [was] not enough information in the record to make this determination” and remanded the matter to the trial court “to determine whether Jarrod’s [sic] previous suspicions[,] coupled with the information on July 25, 2000[,] warranted investigation by the City of Westlake before the American Legion fire was set.” Id. at 302.

Subsequently, the City reurged its motion for summary judgment which was again granted by the trial court. It is from this judgment that Trinity appeals. For the following reasons, we affirm.

ISSUES

In its appellate brief, Trinity assigns six errors of the trial court, raising the following issues:

I. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN MISINTERPRETING THE DECISION OF THE THIRD CIRCUIT COURT OF APPEAL?
II. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN GRANTING DEFENDANTS’ [SIC] MOTION FOR SUMMARY JUDGMENT WHEN A GENUINE ISSUE OF MATERIAL FACT REMAINS AS TO THE TIME THE FIRE WAS STARTED?
|SHI. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN GRANTING THE MOTION FOR SUMMARY JUDGMENT WHEN THE STATEMENT OF UNCONTESTED FACTS INCLUDED WITH DEFENDANTS’ [SIC] MOTION FOR SUMMARY JUDGMENT INCLUDED FACTUAL MISREPRESENTATIONS?
IV. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN UTILIZING AN INCORRECT LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT?
V. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN GRANTING THE MOTION FOR SUMMARY JUDGMENT WHEN THE STATEMENT OF UNCONTESTED FACTS AND THE AFFIDAVIT OF CHIEF MCCELLAND INCLUDED WITH DEFENDANTS’ [SIC] BRIEF CONTAINED'ERRORS?
VI. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN RULING THAT THE CITY OF WESTLAKE DID NOT HAVE SUFFICIENT TIME TO TAKE ACTION TO PREVENT JAMES LYONS FROM COMMITTING ARSON?

Despite the issues set forth by Trinity, we are bound by the prior opinion and final judgment of this court which limits our inquiry solely to the City’s “knowledge of Jarrod’s [sic] suspicions and whether it could have investigated those suspicions and prevented the fire at the American Legion.” Id. at 302.

LAW AND ARGUMENT

“Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137 (citing Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783). The appellate court must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

In denying the prior summary judgment in these proceedings, this court recognized that Jared’s statements seemed to indicate that he had told Assistant Fire [4Chief Picou of his suspicions prior to the night of July 25, 2000. “If in fact he did, the City may have had time to conduct an investigation to determine whether his suspicions were correct.” Trinity, 896 So.2d at 302. A review of the record now before us clearly indicates that this fact is no longer at issue.

It was established in the prior proceeding that there had been a number of fires occurring over a two-week period in the City of Westlake. On July 25, 2000, the night of the fire at the American Legion, Jared spoke to Lyons. When parting, Lyons commented to Jared that he would see him later. This statement aroused suspicion in Jared that Lyons might be the individual responsible for starting the recent fires, since it seemed to him that when Lyons would make such a statement, a fire did actually occur that night. Therefore, when Jared got off work, sometime after 9:15 p.m., he informed Assistant Fire Chief Picou of his suspicions of Lyons’ recent activity and the conversation between Lyons and him earlier that night. The fire at the American Legion building began between 12:00 a.m. and 1:00 a.m.

Our review of the record reveals that there is no remaining question of fact regarding the City’s knowledge, vel non, of Lyons’ involvement in the arsons prior to the conversation between Jared and Assistant Fire Chief Picou the night of July 25, 2000. At no time prior to this conversation had Jared communicated to Assistant Fire Chief Picou and/or Fire Chief McClel-land any concerns regarding Lyons’ involvement in or with the recent fires in the City. Additionally, prior to the conversation that evening, neither Fire Chief McClelland nor Assistant Fire Chief Picou had any suspicion that Lyons had committed any acts of arson.

Although Trinity argues that genuine issues of material fact remain in dispute because the above times were not established with certainty, we disagree. The evidence establishes that the City’s first knowledge that Lyons might have been responsible for any previous arsons, and that he might commit arson the night of July | fi25, 2000, was when Jared made Assistant Chief Picou aware of his suspicions sometime after 9:15 p.m. on July 25, 2000. The fact that there was no prior knowledge on the part of the City was unrefut-ed. Therefore, we find no “error with the trial court’s conclusion that this short period of time was insufficient for the City to have acted.” Accordingly, the judgment of the trial court granting the City’s motion for summary judgment is affirmed.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of the City of Westlake is affirmed.

Costs of this appeal are assessed against Plaintiff/Appellant, Trinity Universal Insurance Company.

AFFIRMED.