author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Timothy E. ROBERTSON.
    No. 06-167.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      James Patrick Lemoine, District Attorney — Parish of Grant, James D. White, Jr., Assistant District Attorney — Parish of Grant, Colfax, LA, for PlaintiffiAppellee— State of Louisiana.
    Richard Emile deVargas, Natchitoches, LA, for Defendant/Appellant — Timothy E. Robertson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.

      . It is unnecessary to decide in this case whether the ruling in Skipper should be retroactively applied to a case in which the defendant's conviction was final at the time the ruling was issued.

   THIBODEAUX, Chief Judge.

hThe Defendant, Timothy E. Robertson, appeals his jury conviction for the creation or operation of a clandestine laboratory for the unlawful manufacture of methamphetamine, second offense, in violation of La. R.S. 40:983(A)(3) and 40:982.

He challenges the sufficiency of the evidence presented at trial, the denial of his motion to suppress, the trial court’s admission of evidence of other crimes, and the denial of his motion to quash. Because we find merit in the Defendant’s latter two contentions, we vacate the Defendant’s conviction and sentence and remand for further proceedings. Louisiana Revised Statutes 40:982 does not define a crime and should not have been included in the bill of information as a substantive offense. We apply State v. Skipper, 04-2137 (La.6/29/05), 906 So.2d 399 retroactively.

Defendant contends the State improperly included La.R.S. 40:982 in the amended bill of information and that the presentation of evidence concerning his prior conviction denied him a fair trial, in violation of Skipper, 906 So.2d 399. Thus, he contends his motion to quash was improperly denied.

At the hearing on the motion to quash, the trial court, following jurisprudence from this court, ruled that La.R.S. 40:982 had to be charged in the bill of information as it was an element of the crime. After Defendant was convicted and sentenced, the Louisiana Supreme Court issued its opinion in Skipper.

|2In Skipper, the defendant filed a motion to quash the bill of information charging him with a second drug offense under La.R.S. 40:982. The trial court granted the motion to quash and the State appealed. The supreme court held:

[W]e hold that La.R.S. 40:982 should be treated as a sentencing enhancement provision after conviction, like La.R.S. 15:529.1, and not as a substantive element of the presently-charged offense. Specifically, the allegations of the prior offense must not be placed in the charging instrument of the second or subsequent drug-related offense nor may evidence of the prior offense be presented to the jury determining the defendant’s guilt or innocence in the trial of the second or subsequent drug-related offense for the purpose of sentence enhancement under La.R.S. 40:982.
State v. Murray, 357 So.2d 1121 (La.1978), and any appellate decisions, as discussed herein, which stand for the proposition that a prior conviction must be placed in the charging instrument of the second or subsequent drug-related offense or proved to the jury in order to enhance the sentence of a drug-related felony under La.R.S. 40:982, are hereby overruled.
So finding, we hold that the trial court properly granted the motion to quash the bill of information in this matter as the state misapplied La.R.S. 40:982 by placing the allegation of the prior offense in the bill of information. The ruling of the trial court on the motion to quash is AFFIRMED.

Id. at 416-17.

In reaching its conclusion, the Skipper court found that La.R.S. 40:982 “does not in and of itself define a crime.” Id. at 416.

Skipper was in the pretrial stage when the issue concerning the inclusion of the prior offense in the bill of information was raised. The supreme court noted that it was not called upon to discuss the applicability of a harmless error analysis or the “possible ameliorative effects of a limiting instruction post-[State v.] Green[, 493 So.2d 588 (La.1986)], to circumstances in which a prior offense was listed in the charging instrument, read to the jury and of which evidence was presented at trial.” Id. at 416 n. 23.

laThe State points out that the status of Skipper - is different than in this case in that Skipper was decided pre-trial. It contends that a harmless error analysis should be conducted and that the error was harmless in this case.

The Defendant in the present case had been convicted and sentenced when the Skipper opinion was issued. Thus, we will first address whether the decision should be retroactively applied to Defendant before proceeding with a discussion of the applicability of a harmless error analysis.

In State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the supreme court traced the evolution of United States Supreme Court cases addressing the retroactivity of new rulings to cases final at the time the new ruling was rendered as well as those that were pending on direct review at the time the new ruling was issued. In doing so, the supreme court discussed Justice Harlan’s suggestion of a new test for retroactivity in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971):

Accordingly, he proposed a general principle whereby “all constitutional errors not waived or harmless are correctable on habeas and by defining such errors according to the law in effect when a conviction became final.” Id. at 692, 91 S.Ct. at 1179 (emphasis added). Under this general principle, new rules would not be given retroactive effect on collateral review, although they would be applied to cases pending on direct review. However, Justice Harlan created two exceptions in which he would give retroactive effect to new rules on collateral review. The first exception involved new substantive due process rules — i.e., rules placing certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. The second exception referred to new rules which required observance of “those procedures that ... are implicit in the concept of ordered liberty” and altered our understanding of the “bedrock procedural elements” of a fair trial....
|4In the next several years, the Court began to gradually move away from Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)] and toward the analysis suggested by Justice Harlan. The Court began by adopting Justice Harlan’s view that a new rule should be applied retroactively to all cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

Taylor v. Whitley, 606 So.2d at 1294.

The Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”

The Taylor court also discussed pertinent Louisiana court rulings on retroactivity:

Turning now to our state law decisions on retroactivity, we find they have also recognized the principle that the constitution does not prohibit nor require courts to give retroactive application to criminal law decisions. State v. St. Pierre, 515 So.2d 769, 774 (La.1987). Our cases decided after Linkletter reflect the confused state of the law under that case.
Subsequently, our cases have followed Griffith v. Kentucky, supra, and have applied new rules to cases pending on direct review or not yet final. See State v. Sanders, 523 So.2d 209 (La.1988); State v. St. Pierre, 515 So.2d 769 (La.1987). In fact, we recently applied the Gage rule to a case pending on direct appeal at the time Cage was rendered. State v. Smith, 600 So.2d 1319, 1326 n. 5 (La.1992).

Taylor, 606 So.2d at 1296.

There are at least two more recent cases in which the supreme court and second circuit, relying on Griffith, applied a new ruling to a case pending on appeal. See State v. Naquin, 00-291 (La.9/29/00), 769 So.2d 1170 and State v. Ford, 26,422 1.(La.App. 2 Cir. 9/21/94), 643 So.2d 293. Skipper, in our view, announced a “new rule” in that the result in Skipper was not dictated by existing precedent.

In light of the foregoing jurisprudence, Skipper is retroactively applied to Defendant’s case. When Skipper was decided, Defendant had been convicted and sentenced and his motion to reconsider sentence was pending. Clearly, his conviction was not yet final and the foregoing jurisprudence supports the retroactive application of Skipper to his case. Thus, it was error for the State to include the prior offense in the bill of information.

Because operation of a clandestine laboratory, second offense, is a “non-crime,” as expressed in the jurisprudence, the conviction and sentence for a violation of La.R.S. 40:982 should be vacated. Such convictions do not bar retrial pursuant to double jeopardy protections. Therefore, we remand this case for further proceedings. State v. Campbell, 95-1409 (La.3/22/96), 670 So.2d 1212.

In Skipper, the defendant was originally charged by bill of information with violating La.R.S. 40:967, and the State amended the bill to additionally charge a violation of La.R.S. 40:982. Thus, it appears the amended bill contained both charges. The trial court quashed the amended bill. Assuming that the amended bill contained both charges, then by affirming the trial court’s ruling, the supreme court apparently agreed that both charges should be quashed, rather than the La.R.S. 40:982 charge alone. In the past, the supreme court has held that only a portion of a bill which contained a duplicitous charge needed to be quashed, rather than the entire bill. See State v. Coody, 448 So.2d 100 (La.1984). Thus, the Skipper court’s decision to |fiuphold the quashing of the amended bill implies that the supreme court views La.R.S. 40:967 and La.R.S. 40:982 as non-severable.

We note that our court has recently applied Skipper retroactively and has held that it is error to include a prior offense in the bill of information if a defendant’s conviction is not yet final. State v. Senegal, 05-1633 (La.App. 3 Cir. 5/24/06), 931 So.2d 450, 2006 WL 1408439.

CONCLUSION

Pursuant to Skipper, 906 So.2d 399, La. R.S. 40:982 does not state a substantive crime. Therefore, the conviction and sentence are vacated. Since Defendant was convicted of a non-crime, there is no double jeopardy bar to retrial. See, e.g., Campbell, 670 So.2d 1212.

CONVICTION AND SENTENCE VACATED. REMANDED FOR FURTHER PROCEEDINGS.

      . Louisiana Revised Statutes 40:982 reads in pertinent part:
      A. Any person convicted of any offense under this part, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both. If the conviction is for an offense punishable under R.S. 40:966(B), R.S. 40:967(B), R.S. 40:968(B) or R.S. 40:969(B), and if it is the offender’s second or subsequent offense, the court may impose in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.

      . In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Supreme Court defined the finality of a conviction as "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certio-rari finally decided.” Id. at 712 n. 6, 107 S.Ct. 708.

      . We decline the State's invitation to apply a harmless error analysis to this case. Since the statutes in the bill of information are not severable, the Defendant was convicted of a non-crime. Hence, the harmless error analysis is inapplicable.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    ROBERT SEPULVADO LOGGING, INC., et al. v. Julius SEPULVADO.
    No. 05-1630.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      William P. Crews, Jr., Attorney at Law, Natchitoches, Louisiana, for Defendant/Appellee, Julius Sepulvado.
    William A. Jones, Jr., Attorney at Law, Ruston, Louisiana, for Plaintiffs/Appellants, Robert Sepulvado Logging, Inc. and American Interstate Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

| Robert Sepulvado Logging, Inc. (Sep-ulvado Logging) and American Interstate Insurance Company (American Interstate) appeal an award of supplemental earnings benefits (SEB), penalties, and attorney fees in favor of Julius Sepulvado. We affirm in part and reverse in part, as more fully explained below.

Factual Background

Mr. Sepulvado injured his right knee on December 7, 2001, while working as a “saw hand” or a “logger” for Sepulvado Logging. Dr. Lewis Jones, an orthopedic surgeon, performed arthroscopic surgery on February 21, 2002, to repair a torn medial meniscus cartilage. Mr. Sepulvado remained off work from the date of injury until May 13, 2002, after Dr. Jones had released him to light duty with the expectation that he would return to his former job within six weeks. Mr. Sepulvado’s condition did not improve as expected, however; and after prescribing a series of Synvise injections, Dr. Jones ordered a functional capacity examination (FCE) that was performed by occupational therapist Paul Procell on August 1, 2002. In that FCE report, Mr. Procell concluded that Mr. Sepulvado would not be able to return to his previous job of a “logger,” which was classified as heavy duty employment, but that he could perform medium duty work, which was defined as lifting and handling fifty pounds occasionally, twenty pounds frequently; squatting and climbing on an occasional basis; and avoiding continuous standing/walking greater than two hours. At the time of the FCE, Mr. Sepulvado had begun operating a skidder for the same employer, a position that Mr. Procell found to be within these restrictions. On August 8, 2002, Dr. Jones released Mr. Sepulvado from his care, agreeing with the FCE that he was permanently restricted from working as a logger, but that he could continue working at medium level. While working both at light duty and then at | ¡medium duty as a skidder operator, Mr. Sepulvado was paid the same salary he earned at his heavy duty position of a saw hand or logger.

On November 14, 2002, Mr. Sepulvado was examined by Dr. Austin Gleason, who assigned him a seven percent disability of the affected extremity, which translated to a three-percent total body impairment.

On January 27, 2003, Mr. Sepulvado returned to Dr. Jones, complaining of more pain in his right knee and more difficulty while operating a larger machine. Dr. Jones diagnosed tendinitis of the medial collateral ligament, for which he recommended an injection, Medrol Dosepak, Bextra, and Darvocet. Sometime in April of 2003, Mr. Sepulvado quit his job as a skidder operator, complaining that his knee hurt too much for him to continue working.

On April 28, 2003, Mr. Sepulvado was examined for a second opinion by Dr. Gordon Mead, an orthopedic surgeon, who stated that he was unable to find objective evidence to support the level of pain reported. Dr. Mead reviewed pictures of the logging equipment and concluded that Mr. Sepulvado should be able to climb in and out of the skidder four or five times a day, which was reported as a job requirement. He also would have expected to have seen some atrophy in the right thigh as the result of a significant knee problem, but his examination revealed that both thighs were equal in circumference. Dr. Mead agreed with the FCE and with Dr. Gleason’s permanent impairment rating.

On July 9, 2003, Mr. Sepulvado returned to Dr. Jones, who again prescribed an injection, as well as two weeks of physical therapy. On a return visit of July 23, 2003, Dr. Jones ordered that physical therapy be continued for an additional three weeks and for the first time suggested that Mr. Sepulvado consider retraining for a | ¡¡different vocation. When an MRI of October 1, 2003 appeared normal, Dr. Jones sought another opinion from Dr. David Waddell of the same office. Dr. Waddell recommended a bone scan and then pain management, should the bone scan have negative results. When the bone scan came back essentially negative, Dr. Jones did not order pain management, but instead prescribed 800 mg of Ibuprofen twice a day and recommended that Mr. Jones wear his knee cage when he is having a “bad day” or is walking on unlevel ground.

In December of 2003, Mr. Sepulvado was still reporting to Dr. Jones that he could not get into the skidder because of its height and because it “shakes him too much.” Dr. Jones then ordered another FCE from Mr. Procell, which was performed on January 6, 2004. In this report, Mr. Procell concluded that Mr. Sepulva-do’s “work capacities demonstrated today are also less when compared to his previous [FCE] completed 8/01/2002.” Mr. Procell found that Mr. Sepulvado could perform at the light-medium work level, which he defined as lifting thirty-five pounds occasionally, fifteen pounds frequently; squatting and climbing occasionally; and avoiding continuous standing/walking greater than one hour and no greater than four to six hours total in an eight-hour shift. After reviewing the FCE report on January 16, 2004, Dr. Jones found that Mr. Sepulvado was unable to work in the woods driving a skidder or any serious vibrating equipment.

In his deposition of January 11, 2005, Dr. Jones reversed his opinion that Mr. Sepulvado was unable to operate a skidder after he reviewed a twenty-nine minute summary of nine hours of video surveillance taken of Mr. Sepulvado in February and May of 2004. In the video, Mr. Sepul-vado is seen climbing in and out of the back of a pickup truck while leading with his right leg and dancing with his |4wife over several hours on two occasions. Dr. Jones considered some of the activities to be inconsistent with Mr. Sepulvado’s complaints of pain, in particular dancing for more than thirty minutes. - However, he also stated that he was unable to tell if Mr. Sepulvado was wearing his knee brace in the video and noted that at the time of the taping Mr. Sepulvado had been prescribed 800 mg of Ibuprofen twice a day. Dr. Jones stated that he did not believe Mr. Sepulvado was a malingerer or a fraud, but after reviewing the tape, he believed Mr. Sepulvado could go back to work operating a skidder.

Dr. Garland Miller, the general practitioner who had referred Mr. Sepulvado to Dr. Jones, did not believe the activities on the video were inconsistent with Mr. Sep-ulvado’s complaints of pain. In particular, Dr. Miller noted that, throughout most of the video, Mr. Sepulvado had his legs extended without exerting direct pressure on the knees. He believed that a repetitive motion test with knee exercises, similar to an FCE, would more likely indicate his true capabilities. Based upon Mr. Sepul-vado’s documented lack of full flexion, Dr. Miller did not believe that Mr. Sepulvado could flex his knees at ninety degrees and step on skidder clutch.

At trial, Mr. Sepulvado offered the following observations about his activities on the video. He pointed out that during the first dancing episode, he and his wife were on the dance floor for a total of thirteen minutes over a two-hour period, dancing to three slow songs and two fast songs. As to the second evening of dancing, he noted that he and his wife danced a total of forty-one minutes over four hours. According to Mr. Sepulvado, they danced nine slow songs and four fast songs, with the longest time on the dance floor at one time being five minutes.

| ¡¡Mr. Sepulvado also testified that when he began complaining about his knee on the job, his boss, Robert Sepulvado, told him that he did not have anything else for him to do and for him to come back when he settled with the insurance company or when he got a full release from the doctor. Mr. Robert Sepulvado denied telling Mr. Sepulvado to come back to work after a settlement, but instead told him that he could come back “whenever he got where he could work.” Mr. Robert Sepulvado further testified that he has since downsized his operations and that he no longer has a skidder position available.

Procedural History

Sepulvado Logging and American Interstate paid Mr. Sepulvado indemnity benefits from the date of his injury, December 7, 2001, until he went back to light duty work in May of 2002, but continued to pay medical expenses. They resumed indemnity benefits when Mr. Sepulvado quit his job operating a skidder in April of .2003, and they filed this disputed claim on August 19, 2004, seeking a .determination that he had recovered from his injury so that he was able to earn at least ninety percent of his pre-injury wages. The employer and insurer discontinued benefits on April 15, 2005. Mr. Sepulvado filed a reconven-tional demand seeking payment of additional medical bills for treatment received from Dr. Miller and for fees charged by a vocational rehabilitation counselor that he hired. He also made a claim for a back injury allegedly related to his initial accident.

After a trial, the workers’ compensation judge (WCJ) awarded Mr. Sepulvado SEB at a zero earnings rate from the date of termination, as well as penalties of $2,000.00 and attorney fees of $5,000.00, but denied any claims related to additional expenses and injuries. In oral reasons, the WCJ stated that Mr. Sepulvado clearly |fisuffered a permanent partial disability that prevented him from returning to his original job as a saw hand. The WCJ also found that the employer and insurer had not demonstrated that a suitable job existed within Mr. Sepulvado’s physical capabilities, particularly in light of the employer’s testimony that he has downsized and no longer has a skidder job available.

On appeal, Sepulvado Logging and American Interstate argue that the WCJ erred in finding that Mr. Sepulvado proved he was unable to earn ninety percent of his pre-injury wages, in finding that the employer failed to demonstrate job availability, and in awarding penalties and attorney fees. Mr. Sepulvado has answered the appeal, seeking the medical and vocational rehabilitation expenses that the WCJ denied and additional attorney fees for work performed on appeal.

Supplemental Earnings Benefits

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 8-9 (La.7/1/97), 696 So.2d 551, 556, the supreme court discussed the purpose of SEB and set forth each party’s burden of proof in an SEB claim as follows:

“The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). An employee is entitled to receive supplemental earnings benefits (SEBs) if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. LA.REV. STAT.ANN. § 23:1221(3)(a) (West Supp. 1997). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Freeman [v. Poulan/Weed Eater ], 93-1530 [ (La.1/14/94) ] at p. 7, 630 So.2d [733] at 739. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989).
Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or |7establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. LA.REV.STAT. ANN. § 23:1221(3)(c)(i) (West Supp. 1997); Daigle, 545 So.2d at 1009. Actual job placement is not required. Romero v. Grey Wolf Drilling Co., 594 So.2d 1008, 1014-15 (La.App. 3d Cir.1992). The amount of SEBs is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. LA.REV.STAT.ANN. § 23:1221(3)(a) (West Supp.1997).

“Further, ‘[disability can be proven by medical and lay testimony’ and the WCJ ‘must weigh all the evidence, medical and lay, in order to determine if the claimant has met his burden of proof.’ ” Bradley v. ConAgra Poultry Co., 03-23, p. 7 (La.App. 3 Cir. 4/30/03), 843 So.2d 1255, 1259 (quoting Bolton v. Grant Parish Sch. Bd., 98-1430, p. 4 (La.3/2/99), 730 So.2d 882, 885). “Thus, the issue of disability is a factual determination. Factual findings of a[WCJ] may not be disturbed by an appellate court unless the factual findings are manifestly erroneous or clearly wrong.” Hilts v. Wal-Mart Stores, Inc., 02-1440, p. 4 (La.App. 3 Cir. 4/2/03), 842 So.2d 465, 469, writ denied, 03-1258 (La.9/5/03), 852 So.2d 1036 (quoting Fritz v. Home Furniture-Lafayette, 95-1705, p. 3 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132, 1134 (citation omitted)).

The employer and insurer argue that, because Mr. Sepulvado voluntarily left a job within his physical capabilities that paid the same as his pre-accident wages, he cannot meet the initial burden of proving that he is unable to earn ninety percent of his former earnings. They further argue that the WCJ committed legal error warranting a de novo review by requiring them to prove job availability before the employee met his initial burden of proof. Mr. Sepulvado responds that the medical Land lay testimony shows that, rather than voluntarily leaving the job of operating a skidder, he quit for medical reasons.

The record reflects that Mr. Sepulvado is permanently disabled from his former heavy duty position of a saw hand or logger. As to his continued ability to perform the medium duty position offered by his employer, the record reflects that he reported pain and difficulty operating the skidder in January of 2003, which was approximately three months before he left that employment. His treating physician injected his knee at that time and placed him on anti-inflammatory and pain medications. After leaving his job in April, he continued to receive treatment through August of 2003, which included injections and physical therapy. In January of 2004, he underwent another FCE that documented a decrease in his work capabilities from the previous test of August 2002 and that resulted in a change in classification from medium duty to light-medium duty with more restrictions. During that time, two independent medical opinions were obtained: one physician could find no reason for his continued complaints of pain, whereas another recommended a pain management program that was never implemented. His treating physician agreed with the greater restrictions imposed by the most recent FCE and continued to prescribe anti-inflammatory and pain medications, as well as a knee cage. In addition to this medical evidence, the record reflects that Mr. Sepulvado’s employer told him that he could return “whenever he got where he could work.” The record also reflects that the skidder position is no longer available, as the employer testified that he has since downsized his operations.

Mr. Sepulvado’s treating orthopedist, Dr. Jones, testified in January of 2005 that he believed Mr. Sepulvado could operate a skidder after viewing an abbreviated | sversion of video surveillance that began in February of 2004, approximately ten months after Mr. Sepulvado left his employment. Dr. Jones also testified that he was unable to tell if Mr. Sepulvado was wearing a knee brace while being videoed. Another treating physician, Dr. Miller, however, disagreed with Dr. Jones’ opinion regarding the surveillance, stating that he believed work capacity would be more accurately measured by the repetitive exercises of an FCE.

After reviewing the totality of the evidence, under either a manifest error or de novo standard, we find that Mr. Sepul-vado has proved his entitlement to SEB. The medical records compiled before and after Mr. Sepulvado left his job do not support the employer’s contention that he left his job voluntarily. Those records document continued complaints, additional treatment, and a decreased work capacity. The video surveillance that Dr. Jones relied upon in reversing his opinion as to disability did not begin until ten months after Mr. Sepulvado left his job, and another treating physician did not believe that the surveillance was an accurate measure of whether Mr. Sepulvado could operate a skidder. Considering the permanent disability from his previous employment, as well as the downgraded restrictions to “light-medium” duty in the most recent FCE, we find that Mr. Sepulvado has demonstrated his inability to earn ninety percent of his pre-accident wages. We further find that the employer and insurer have not met their burden of proving job availability, even if Mr. Sepulvado were capable of operating a skidder as of January 2005, given the employer’s testimony that such a job is no longer available. Accordingly, the award of SEB at a zero earnings base is affirmed.

| inPenalties and Attorney Fees

The employer and insurer next argue that the WCJ erred in awarding penalties and attorney fees, given their reliance on Mr. Sepulvado’s treating physician’s opinion. We agree.

Because this case involves a discontinuance of benefits, the standard by which the employer or insurer’s conduct is judged is found in La.R.S. 23:1201(1). Under that statute, an employer or insurer who discontinues payment shall be subject to penalties and attorney fees “when such discontinuance is found to be arbitrary, capricious, or without probable cause.” In Brown v. Texas-LaCartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890, the supreme court explained:

Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. BLACK’S LAW DICTIONARY 104, 211 (6th ed.1990). Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED 110, 333 (1966).

Further, the arbitrary and capricious standard requires conduct that is more egregious than that required by La.R.S. 23:1201(F), which imposes penalties and attorney fees when the employer or insurer fails to timely pay a claim that is not “reasonably controverted.” Brown, 721 So.2d 885.

In the present case, the employer and insurer relied upon the opinion of the claimant’s treating physician that he could perform a job that was at one time available to him. Although both the WCJ and this court found that opinion not to be determinative in light of the other medical and lay evidence in the record, we cannot Insay that the termination of benefits was arbitrary and capricious, given the history of this claim. Accordingly, the award of penalties and attorney fees is reversed, and Mr. Sepulvado’s claim for additional attorney fees on appeal is denied.

Answer to Appeal

In his answer to the appeal, Mr. Sepulvado argues that the WCJ erred in denying his claim for additional medical expenses of Dr. Miller and the fees of a vocational rehabilitation counselor that he hired. We find no error in the denial of either claim. Although this court recognized in Batiste v. Capitol Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395, that an employer is not the only entity that may select a vocational rehabilitation counselor, that case arose in the context where the WCJ accepted a particular counselor suggested by the employee. Significantly, the employee in that case sought authorization from the WCJ before hiring the counselor. In the present case, it appears that the employee “independently, without any authority, procured an additional counselor,” a procedure that we did not allow in J.E. Merit Constructors, Inc. v. Hickman, 99-1389, p. 6 (La.App. 3 Cir. 3/1/00), 758 So.2d 320, 325, rev’d in part on other grounds, 00-943 (La.1/17/01), 776 So.2d 435. As to Dr. Miller’s expenses, the record reflects that Mr. Sepul-vado admittedly sought treatment from Dr. Miller for his additional problems of diabetes and hypertension. We find no error in the denial of these claims.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation is reversed insofar as it awards Julius Sepul-vado penalties and attorney fees. In all other respects, the judgment is affirmed. Costs of this appeal are assessed one-half |1?to Robert Sepulvado Logging, Inc. and American Interstate Insurance Company and one-half to Julius Sepulvado.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . In Brown, 721 So.2d at 890, the supreme court was discussing language then found at La.R.S. 23:1201.2. Louisiana Revised Statutes 23:1201.2 was repealed by 2003 La. Acts No. 1204, § 2, and its substance is now found at La.R.S. 23:1201(1).


author: PAINTER, Judge.

text:
    Brett CRADER and Daniel McCoy v. PINNACLE ENTERTAINMENT, INC. and PNK (Lake Charles), L.L.C.
    No. 06-136.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Thomas M. Long, Lafayette, LA, for Defendants-Appellees, Pinnacle Entertainment, Inc. and PNK (Lake Charles), L.L.C.
    Kenneth Michael Wright, Ike A. Ho-baugh, Lake Charles, LA, for Plaintiffs-Appellants, Brett Crader and Daniel McCoy.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| t Plaintiffs, Brett Crader and Daniel McCoy, appeal the trial court’s ruling in favor of Defendants, Pinnacle Entertainment, Inc. and PNK (Lake Charles), L.L.C., granting Defendants’ motion to dismiss Plaintiffs’ class action petition for failure to timely move for certification of the action as a class action under La.Code Civ.P. art. 592(A)(1). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 17, 2005, Brett Crader and Daniel McCoy filed suit in the Fourteenth Judicial District Court against Pinnacle Entertainment, Inc. and PNK (Lake Charles), L.L.C. That petition stated that Crader and McCoy would be the representatives of the following purported class: “All employees of any subcontractor of Manhattan Construction Company employed in building the Pinnacle Hotel and Casino project in Lake Charles, Louisiana.” The general allegations were that the purported class had been damaged due to mold, paint fumes, and fireproofing materials contained at the jobsite.

The record reflects that both Defendants were served with the original petition on March 1, 2005. Defendants filed exceptions of no cause of action and vagueness on April 15, 2005. After a hearing on the exceptions, the trial court granted the exceptions of no cause of action and of vagueness on August 29, 2005. Plaintiffs then filed a supplemental and amending petition on September 8, 2005.

On September 9, 2005, alleging that the statutory deadline provided by La.Code Civ.P. art. 592(A)(1) had passed, Defendants filed a motion to dismiss the class action. Plaintiffs then filed a motion for class certification on the same day.

Defendants filed an answer and affirmative defenses on October 5, 2005.

| ?The trial court held a hearing on Defendants’ motion to dismiss on October 10, 2005. The trial court, finding that no,good cause existed for the delay, granted the motion to dismiss the class action but reserved the rights of Crader and McCoy to proceed in their individual capacities. Crader and McCoy now appeal, asserting as their sole assignment of error that the trial court applied the wrong legal standard in deciding the motion to dismiss.

DISCUSSION

The relevant portions of La.Code Civ.P. art. 592, which set out the mandatory procedures to be followed for class certification, provide as follows:

A. (1) Within ninety days after service on all adverse parties of the initial pleading demanding relief on behalf of or against a class, the proponent of the class shall file a motion to certify the action as a class action. The delay for filing the motion may be extended by stipulation of the parties or on motion for good cause shown.
(2) If the proponent fails to file a motion for certification within the delay allowed by Subparagraph A(l), any adverse party may file a notice of the failure to move for certification. On the filing of such a notice and after hearing thereon, the demand for class relief may be stricken. If the demand for class relief is stricken, the action may continue between the named parties alone. A demand for class relief stricken under this Subparagraph may be reinstated upon a showing of good cause by the proponent.

As stated above, both Defendants were served with the initial petition on March 1, 2005. Thus, according to statute, Plaintiffs had until May 31, 2005 to file a motion to certify the action as a class action. No motion for class certification was filed until September 9, 2005.

This court has previously stated: “The clear wording of Article 592(A)(1) requires that a motion to certify the action as a class action must be filed ‘within ninety days after service on all adverse parties of the initial pleading Martello v. City of Ferriday, 04-90, p. 2 (La.App. 3 Cir. 11/3/04), 886 So.2d 645, 648, writs denied, 04r-2964, 04-2976 (La.2/25/05), 894 So.2d 1147, 1148. Furthermore, the courts | shave recognized that the trial court is given great discretion in the handling of class action matters, particularly with regard-to those matters which affect the general order of proceedings. La.Code Civ.P. art. 592(E)(5); Triche v. E.I. duPont deNemours and Co., Inc., 98-1019 (La.App. 5 Cir. 3/30/99), 734 So.2d 1231, writ denied, 99-1198 (La.6/4/99), 744 So.2d 632. Thus, we cite with approval the fifth circuit’s decision in Eugene v. Marathon Oil Co., 99-61 (La.App. 5 Cir. 5/19/99), 735 So.2d 933, wherein that court recognized that a plaintiff is required to show good cause why the class action petition should not be dismissed when the defendant files a motion to dismiss based on failure to comply with the procedure set forth in La.Code Civ. P. art. 592(A)(1).

In brief, Plaintiffs argue that there was good cause for the delay because Defendants were not prejudiced thereby, because Defendants asked for extensions to answer and filed exceptions which had to be resolved, and because Hurricanes Katrina and Rita disrupted the normal flow of paperwork. Plaintiffs’ basic argument is that the trial court has discretion in as to whether or not to dismiss the class action in this instance and that dismissal of the class action was not mandated by their failure to timely file a motion for class certification since La.Code Civ.P. art. 592(A)(2) states that “the demand for class relief may be stricken” rather than “shall be stricken.” Thus, Plaintiffs contend that the trial court believed that dismissal was mandated rather than left to his discretion. This argument, however, ignores the fact that Plaintiffs failed to ask for an extension of the delay for filing the motion and failed to present evidence showing good cause for the failure to timely file the motion for certification at the hearing on Defendants’ motion to dismiss.

In this case, as in Eugene, Plaintiffs failed to make a showing of good cause why the class action should not be dismissed after failing to file a motion for class | certification within the ninety days proscribed by statute. We see no reason why Plaintiffs were prevented from filing such a motion such that the delay should be extended. The trial court considered Plaintiffs’ good cause argument and stated: “I don’t see on the face of this that there’s necessarily good cause.” Accordingly, we find no merit in Plaintiffs’ assignment of error. Plaintiffs failed to show good cause for their failure to comply with the mandatory provisions of La.Code Civ.P. art. 592(A)(1); therefore, we find no abuse of the trial court’s discretion in dismissing Plaintiffs’ class action. Furthermore, we find no legal error in the trial court’s application of La.Code Civ.P. art. 592 to the facts of this case.

DECREE

Because we find that Plaintiffs did not make a showing of good cause for the delay, we find neither an abuse of discretion nor an error of law by the trial court. We, therefore, affirm the trial court’s ruling which granted Defendants’ motion to dismiss Plaintiffs’ class action petition for failure to timely move for class certification. Like the trial court, we recognize Plaintiffs’ right to proceed in their individual capacities. Costs of this appeal are assessed against Plaintiffs-Appellants, Brett Crader and Daniel McCoy.

AFFIRMED.


author: DECUIR, Judge.

text:
    Earline ALLEMAN, et al. v. Belinda M. ROMERO, et al.
    No. 06-132.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Edwin Gustav Preis, Jr., L. Lane Roy, Dawn L. Morris, Preis, Kraft & Roy, George Edward Williams, Jr., Rabalais Law Firm, LLC, Lafayette, LA, for Defendant/Appellee, Michael Neustrom, Sheriff.
    Rusty Galloway, Galloway & Jefcoat, L.L.P., Lafayette, LA, for Plaintiffs/Appellants, Earline Alleman, Betty A. Miller and Ira Landry.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

| plaintiffs, Earline Alleman, Betty Miller, and Ira Landry, appeal the dismissal of their suit against the Lafayette Parish Sheriffs Office via summary judgment. For the reasons which follow, we reverse and remand for further proceedings.

The instant suit stems from an automobile accident which occurred on October 2, 2002 in Lafayette Parish. Betty Miller was driving a vehicle owned by Ira Landry. In the vehicle with Miller was her mother, Earline Alleman. They were part of a funeral procession traveling on U.S. Highway 90 from Rayne to Scott through the town of Duson. The procession was escorted by two Lafayette Parish Sheriffs deputies. As they passed through Duson, the first intersection controlled by a traffic light was secured by one of the deputies, allowing the procession to cross the intersection regardless of whether the light was red or green.

The second intersection controlled by a traffic light, Highway 90 and Richfield Road, was not secured by the deputies. When Miller approached the intersection, she disregarded the red light and continued to follow the car in front of her in order to remain in the procession. The defendant, Belinda Romero, proceeded through the intersection from Richfield Road on a green light, immediately after crossing a slightly elevated railroad track, and collided with Miller’s vehicle. Both the plaintiffs and Romero allege fault on the part of the sheriffs deputies for failing to secure the intersection and failing to escort the funeral procession in a non-negligent manner.

The Sheriff moved for summary judgment, alleging it was entitled to judgment as a matter of law as the case presents no genuine issue of material fact. The Sheriff alerted the trial court to the “common misconception that participation in a funeral procession gives such participants greater rights than that of other drivers.” The affidavit of an expert in the field of law enforcement was offered and included the following statement: “No member of the Lafayette Parish Sheriffs Office took | ¡.control of the intersection where this accident occurred nor was it necessary that they do so since the traffic control was functioning normally and provided a green light for the funeral procession to proceed.”

In granting summary judgment in favor of the Sheriffs Office, the trial court concluded no material facts were in dispute. The court explained, “The facts that are not in dispute are that the plaintiff enters an intersection that was not controlled by a deputy sheriff but was controlled by a traffic signal, and the signal displayed to her was red.”

We are called upon to determine if the trial court’s decision in dismissing the Sheriffs Office was correct. Consequently, we are governed by a strict standard of review. In the factually similar case of Siripanyo v. Allstate Indemnity Co., 03-559 (La.App. 3 Cir. 12/23/03), 862 So.2d 1254, writ denied, 04-182 (La.3/19/04), 869 So.2d 860, this court determined that summary judgment in favor of a sheriffs deputy who had not yet arrived to escort the funeral procession was inappropriate. Discussing the standard of review, we held:

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is now favored and shall be construed to accomplish these ends. La. Code Civ.P. art. 966(A)(2). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A fact is material when its existence or nonexistence is essential to the plaintiffs cause of action. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the summary judgment motion and in favor of trial on the merits.
In determining whether liability exists in a tort case, Louisiana has adopted a duty-risk analysis. Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the duty was | ^breached by defendant, and the risk of harm was within the scope of protection afforded by the duty breached.

862 So.2d 1257-58 (citations omitted).

The Siripanyo court reversed summary judgment in favor of the sheriff because factual questions remained as to why the procession was unescorted at the time of the accident. Similarly, in LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978), the supreme court determined that an officer who failed to secure an intersection as a funeral cortege passed through was negligent and his negligence was a cause-in-fact of the ensuing accident.

In the instant case, the Sheriff has acknowledged the “common misconception” that participants in a funeral procession may run through red lights. This statement indicates that escorting law enforcement officers anticipate that participants may ignore traffic signals. Additionally, in this case, the expectation of Betty Miller as she approached the controlled Richfield Road intersection may have been affected by the fact that previous intersections were secured by the escorting officers. These considerations raise the question of whether the sheriffs deputies in this case were in any way negligent in carrying out their duties as escorting officers. Determination of the officers’ potential comparative negligence is a factual question and is not precluded by a finding of negligence on the part of the drivers involved in the accident. The fact that Miller’s actions are undisputed is immaterial to a finding of fault on the part of the Sheriffs Office.

The Sheriffs expert explained that it was not necessary for the lead escorting officer to secure the intersection because the light was green when he passed through it. This statement begs the question: Did the officer expect the funeral procession to break up when the light turned red? Or, conversely, did he expect the cross traffic which was stopped for the red light when he passed to remain stopped at the light 14until the procession ended? Did he expect cars traveling on Richfield Road approaching the intersection on a green light to timely realize that a procession was in progress? In addition to these considerations, it is interesting to note that while some jurisdictions have local ordinances governing the formation of processions, the parties have not indicated that Lafayette Parish has enacted any such regulations.

Louisiana has a longstanding tradition of funeral processions usurping the right of way on roads and highways all across the state. Most drivers who realize a procession is in progress will yield the right of way. It may be more difficult to notice a procession in recent years as most cars have illuminated headlights during daylight hours. The escorting job has also been made more difficult as traffic volumes increase and more traffic lights are installed. The facts herein as well as the jurisprudence of this state illustrate a consistent dichotomy between traffic regulations and the custom of funeral processions. See LeJeune; Deshotel v. Southern Farm Bureau Cas. Ins. Co., 224 So.2d 191 (La.App. 3 Cir.1969); Siripanyo; Pickett v. Jacob Schoen & Son, Inc., 488 So.2d 1257 (La.App. 4 Cir.1986); Guidry v. Como, 332 So.2d 579 (La.App. 3 Cir.1976); Funderburk v. Rayfield, 274 So.2d 777 (La.App. 3 Cir.1973). Accordingly, the possible negligence of the escorting officers in this case is a factual question not properly disposed of via summary judgment.

For the above and forgoing reasons, the judgment of the trial court in favor of the Lafayette Parish Sheriffs Office is reversed, and this matter is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to the Lafayette Parish Sheriffs Office.

REVERSED AND REMANDED.


text:
    Connie Durant YOUNG v. Stephen Hardy YOUNG.
    No. 06-77.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.

      Kenneth Perrell Fuselier, Oakdale, LA, Kelly Perrodin Tate, Mamou, LA, for De-fendanVAppellant — Stephen Hardy Young.
    John Craig Jones, Oakdale, LA, for Plaintiff/Appellee — Connie Durant Young.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

| defendant, Stephen Hardy Young (Mr. Young), appeals the trial court’s judgment in this community property partition dispute which classified Mr. Young’s social security disability benefits as community property, and not his separate property. Mr. Young also appeals the trial court’s order that Plaintiff, Connie Durant Young (Mrs. Young), receive reimbursement from Mr. Young to equalize an unequal net distribution of assets and liabilities in the form of allocations of moveable property, instead of ordering him to pay her an equalizing sum of money. Lastly, Mr. Young appeals the trial court’s classification of a majority of the monies in a Hibernia bank account as community property. For the following reasons, we reverse and remand in part, and affirm in part the trial court’s judgment. Social security disability benefits are the separate property of Mr. Young based on the Supremacy Clause of the United States Constitution and the anti-attachment provision contained with the Federal Social Security Act, 42 U.S.C. §§ 402 et seq.; La.R.S. 9:2801 requires an equalizing sum of money, not a transfer of ownership of other tangible property, to equalize an unequal distribution of community assets; and, the characterization of the Hibernia savings account as community property was a factual determination which was well-supported by the trial court.

I.

ISSUE

There are three main issues raised in this appeal:

1. whether federal social security disability benefits are the separate property of the recipient;

|⅞2. whether under La.R.S. 9:2801(A)(4)(d) an unequal distribution of assets and liabilities in a community property partition can be cured by ordering anything other than an “equalizing sum of money;” and,

3. whether the trial court committed manifest error by characterizing most of the funds in a savings account which Mr. Young claimed was created solely with his separate monies as community property.

II.

FACTS

Following a divorce, Mr. and Mrs. Young, pursuant to a petition to partition community property, submitted detailed descriptive lists to each other and to the trial court.

Hearings on the partition petition were held. While the former spouses agreed on the classification of most of the assets listed by each of them in their descriptive lists, Mr. Young disagreed that social security disability benefits were assets belonging to the community, and not his separate property. When the trial court divided the assets and liabilities of the former community, there was an imbalance in terms of the valuation of the property allocated to each former spouse in favor of Mr. Young. There was also disagreement on the characterization of funds in a savings account at Hibernia Bank.

The trial court first determined that social security disability benefits in the amount of $17,386.00 that were paid to Mr. Young in 1996 were to compensate him for lost wages, and were therefore assets belonging to the community, not to Mr. Young separately. Then, after allocating all of the assets, the trial court found that the property assigned to Mr. Young was worth $18,999.99 more than the property allocated to Mrs. Young. The trial court determined that in order to equalize this | ¡¡unequal distribution, the ownership of three items of Mr. Young’s separate property should be transferred to Mrs. Young. Those items were a camp located in Tioga, Louisiana valued at $6,000.00, a Pontiac Grand Am valued at $1,500.00, and a ‘four-wheeler’ valued at $2,000.00. The trial court then ordered Mr. Young to execute whatever documents were necessary to accomplish the transfer of ownership of these items. Finally, the trial court also determined that $15,613.54 of the $17,042.95 deposited in a Hibernia Bank savings account was community property, not the separate property of Mr. Young.

III.

LAW AND DISCUSSION

Standard of Review

Appellate courts review trial court findings of fact under the manifest error, clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). Unless the trial court committed manifest error or was clearly wrong in its findings of fact, those findings will not be disturbed on appeal. Aymond v. Aymond, 99-1372 (La.App. 3 Cir. 3/1/00), 758 So.2d 886. Determinations of what is community versus what is separate property are findings of fact. Biondo v. Biondo, 99-890 (La.App. 1 Cir. 7/31/00), 769 So.2d 94. The standard of review for mistakes of law by the trial court requires the appellate court to engage in a de novo review of the entire record. Rosell, 549 So.2d 840.

Appellate review of a question of law is simply a decision as to whether the lower court’s decision is legally correct or incorrect. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709 (La.App. 4 Cir.1992). If the trial court’s decision was based on its erroneous application of law, rather than on a valid exercise of discretion, the trial court’s decision is not entitled to deference by the reviewing court. Kem Search, Inc., v. Sheffield, 434 So.2d 1067 (La.1983).

Ducote v. City of Alexandria, 95-1269, p. 2 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118, 1120.

Therefore, when the trial court has made an error in the interpretation or application of law, the appellate court must review the record in its entirety de novo and render a judgment on the merits. Rosell, 549 So.2d at 850 n. 2.

Does the Supremacy Clause of the United States Constitution Bar a State Court from Characterizing Social Security Disability Benefits as Community Property Based on the Anti-Attachment Provisions Found in the Federal Social Security Act, 42 U.S.C. §§ 402 et seq.?

A state court’s characterization of community property is based on that court’s interpretation and application of state law. However, the anti-attachment provisions of the federal law governing social security disability benefits supersede state law, making the state court judgment a legal issue subject to de novo review by an appellate court.

“Where one or more trial court legal errors interdict the fact finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record.” Campo v. Correa, 01-2707, p. 10 (La.2002), 828 So.2d 502, 510 (citing Ferret v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 746-47).

Rivera-Santos v. Rivera-Santos, 03-667, p. 5 (La.App. 3 Cir. 12/10/03), 862 So.2d 480, 483.

Article VI, Paragraph 2 of the United States Constitution is known as the Supremacy Clause. It states:

This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, anything in the Constitution or Laws of any state to the contrary notwithstanding.

U.S. CONST, art. VI, cl. 2.

The Supremacy Clause establishes the Constitution, federal statutes, and United States treaties as “the supreme law of the land.” It requires state judges to uphold federal laws, even if state laws or constitutions are in conflict with those federal laws or the Constitution. Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), Philpott v. Essex County Welfare Bd., 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973).

While federal law generally steers clear of attempting to control the arena of family law, when a state’s family statute conflicts with a federal statute, the Supremacy Clause is the basis for determining whether Congress intended for state law to be pre-empted. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802. The United States Supreme Court has narrowed down the inquiry to two questions, “whether the [state] right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition.” Id. at 583, 99 S.Ct. 802.

The Social Security Act contains what is called an anti-attachment clause which prevents the attachment of monies meant to aid the beneficiary receiving them. The anti-attachment provision goes further than just prohibiting the attachment of social security disability benefits; it also protects these benefits from garnishment, levy, bankruptcy, insolvency, or other legal processes:

Section 407. Assignment; amendment of section

(a) The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

42 U.S.C. § 407 (2002) (emphasis added).

|Jn Hisquierdo, the United States Supreme Court determined that Railroad Retirement Act of 1974 benefits may not be divided under state community property laws. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802. The decision was based on an analysis of the anti-attachment provisions of the Railroad Retirement Act, which uses language that is identical to the anti-attachment provision of the Social Security Act. Compare 45 U.S.C. § 231m, and 42 U.S.C. § 407. The Court stated that one of the main reasons for pre-emption was that the federal statute was for “a specified beneficiary protected by a flat prohibition against attachment....” Hisquierdo, 439 U.S. at 582, 99 S.Ct. 802.

Section 407 of the Social Security Act was created by Congress to ensure that the benefits given to a specific beneficiary actually reach that beneficiary. “It pre-empts all state laws that stand in its way. It protects the benefits from legal process ‘[n]otwithstanding any other law ... of any State.’ ” Id. at 584, 99 S.Ct. 802. Congress amended the Social Security Act to allow benefits to be used to satisfy both child support and alimony obligations. 42 U.S.C. § 659(a). However, specifically excepted from the definition of alimony was “any payment or transfer of property or its value by an individual to the spouse or a former spouse of the individual in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” 42 U.S.C. § 659(i) (3) (B) (ii).

The third circuit has had only one opportunity to adjudge the applicability of Louisiana community property law to social security disability benefits. It decided that such benefits were not subject to classification as community property, but did not offer a legal basis for such a classification. Lambert v. Lambert, 480 So.2d 784 (La.App. 3 Cir.1985). The Louisiana First Circuit Court of Appeal has expounded upon whether the Supremacy Clause prevents state community property law from reaching benefits under the Social Security Act.

|7In Thibodeaux v. Thibodeaux, 97-1297 (La.App. 1 Cir. 5/15/98), 712 So.2d 1024, the first circuit explained why the Supreme Court in Hisquierdo applied the Supremacy Clause to benefits protected by anti-attachment provisions in federal benefits statutes:

Thus, the [C]ourt stated that it was logical to conclude that Congress thought that a family’s need for support could justify garnishment, even though it deflected other federal benefit programs from their intended goals, but that community property claims, which are not based on need, could not do so. Hisquierdo, 439 U.S. at 587, 99 S.Ct. at 811.

Id. at 1027.

The trial court erroneously classified Mr. Young’s social security disability benefits as community property as the federal statute awarding those benefits specifically disallows them from being subject to such a state legal process. The Supremacy Clause of the United States Constitution mandates that the goals of the federal law supersede the goals of the state law.

Therefore, we reverse the trial court’s judgment that the $17,386.00 paid to Mr. Young by the Social Security Administration as social security disability benefits were community property. Those funds are the separate property of Mr. Young. However, Mr. Young claims that most or all- of these funds were used to purchase the home on Pine Lane, in Oakdale, Louisiana. Both parties agree that the purchase price of the Pine Lane home was $24,464.00.

We remand to the trial court the issue of whether and how to reallocate assets and monies based on the question of whether Mr. Young is owed any reimbursement for the use of his separate funds to purchase the Pine Lane home, which has already been classified by the trial court as a community asset, or whether Mrs. Young is owed a reimbursement to equalize the sums partitioned between the parties, subject to the allocation and assignment principles stated in La.R.S. 9:2801.1. | sSpecifically, the trial court must decide if Mrs. Young should have property allocated or assigned to her ownership from the bundle of community property equal in value to Mr. Young’s social security disability benefits prior to the division of the rest of the community property. La.R.S. 9:2801.1. The reallocation or reassignment of benefits to Mrs. Young is not mandatory; the trial court shall note that La.R.S. 9:2801.1 allows the court to do so in its discretion when the effected benefits are social security benefits.

Does La.R.S. 9:2801 Allow For Only an “Equalizing Sum of Money” to Cure an Unequal Net Distribution of Assets as Part of a Community Property Partition?

When a trial court interprets and applies state statutes, any error that is made would fall under the de novo standard of review. Ducote, 677 So.2d 1118. After dividing and allocating community assets to Mr. Young and to Mrs. Young, the trial court found that there was an imbalance in the value of those assets. Mr. Young had been allocated community property totaling $40,394.57. Mrs. Young was allocated community property totaling $21,394.58, creating a difference of $18,999.99 in property valuation in Mr. Young’s favor. Louisiana Revised Statutes 9:2801(A) (4) (d) instructs the trial court how a net imbalance in the distribution of' community assets and liabilities should be equalized:

(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon Such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

(Emphasis added).

RWe believe that the plain language of the statute states clearly that the equalization must be made by payment of a sum of money. While the trial court has the discretion to order that such sums be secured through mortgages or liens on a party’s separate property, the statute does not go so far as to give , the trial court the discretion to make a party actually give up their ownership rights to that separate property.

Requiring Mr. Young to give up ownership of his separate property was legal error on the part of the trial court, and we now rescind that part of the trial court judgment. We remand the issue of equalizing the unequal net distribution of assets back to the trial court so that it can be accomplished within the parameters of La.R.S. 9:2801(A)(4)(d).

Did the Trial Court Commit Manifest Error in its Judgment that $15,613.54 of the $17,042.95 that was in the Hibernia Savings Account was Community Property?

An appellate court may not overturn the factual findings of a trial court unless those findings are clearly wrong or manifestly erroneous. Rosell, 549 So.2d 840 (La.1989). “If a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong.” Aymond, 758 So.2d at 889, citing Stobart v. State, Through Dep’t of Transp., 617 So.2d 880, 882 (La.1993). In the context of a case based on a petition to partition community property, “a trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review.” Ross v. Ross, 02-2984, p. 18 (La.10/21/03), 857 So.2d 384, 395.

During the course of the two days of hearings in this case, the trial court heard copious testimony from both Mr. Young and Mrs. Young concerning the origin |inof monies that were deposited into the Hibernia Bank savings account. Some of the money came from Mrs. Young’s earnings, tax refunds, interest payments, among other sources, all of which are undeniably community property. In its judgment, the trial court meticulously identified all of the sources of those funds. There is voluminous testimony and other evidence in the record which supports the conclusion of the trial court that $15,613.54 of the $17,042.95 that was in the account was community property. Therefore, the trial court’s judgment on this issue is affirmed.

IV.

CONCLUSION

When a trial court interprets or applies the law, the judgment rendered will be subject to a de novo review by the appellate court. Wffien the trial court declared that Mr. Young’s social security disability benefits were community property, and not his separate property, an error of law was committed that we now reverse. Mr. Young’s social security disability benefits are his separate property and not subject to state community property law based on the anti-attachment provision contained within the Social Security Act, and the protection of the supremacy of federal law over state law embodied in Article VI, clause two of the United States Constitution, the Supremacy Clause.

The trial court also committed an error of law when Mr. Young was ordered to transfer ownership of items of his separate property to Mrs. Young in order to equalize an unequal net distribution of property. The court was forbidden from accomplishing the equalization by any other means than those enunciated in the statute: an equalizing sum of money. La.R.S. 9:2801(A)(4)(d).

The trial court must now re-determine the distribution of assets and liabilities between Mr. Young and Mrs. Young based on our judgment that Mnj^Young’s social security disability benefits in the amount of $17,386.00 that had been classified as community property are actually Mr. Young’s separate property. If any equalization is owed by one party to the other, it must be accomplished via an equalizing sum of money, and not through the mandatory transfer of ownership of separate property.

The trial court is affirmed in the factual determination that the majority of funds remaining in the Hibernia Bank savings account are community property. There is ample evidence in the record from which a reasonable trier of fact could have reached that conclusion, and therefore the trial court did not commit manifest error, nor was that determination clearly wrong.

Mrs. Young shall pay two-thirds of the costs of this appeal and Mr. Young is assessed one-third of the appeal costs.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART.


author: PAINTER, Judge. DECUIR, J.,

text:
    Deborah Dion BAUDIN v. Robert Terrell SPRUILL, Sr., et al.
    No. 06-161.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Lauren Gay Coleman, Alexandria, LA, for Plaintiff-Appellee, Deborah Dion Bau-din.
    Michael H. Davis, Alexandria, LA, for Defendants-Appellants, Robert B. Tudor, Jr., Sue Tudor Spruill Miller, Dorothy Tudor McWhorter, and Michael S. Tudor.
    Harry H. Lemoine, Jr., Pineville, LA, for Defendant-Appellant, Robert Terrell Spruill, Sr.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Robert T. Spruill, Sr. (“Spruill”), appeals the trial court’s application of the doctrine of after-acquired title in finding Plaintiff, Deborah Dion Bau-din (“Baudin”), to be the owner of timber rights in and to a certain parcel of property. For the following reasons, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Spruill and Baudin were married on October 20, 1978. During their marriage, by act of sale and mortgage executed on June 20, 1988, Spruill and Baudin purchased the following property (“the Tudor tract”) from Spruill’s grandmother, Ollie Beall Tudor Gayer (“Gayer”):

A certain piece, parcel or tract of ground, together with all buildings and improvements thereon, and all rights, ways and privileges thereto belonging or in anywise appertaining, being, lying and situated in Rapides Parish, Louisiana, and being more particularly described as follows, to-wit:
Lot 3 of the Tudor and Beall Subdivision of the Southwest Quarter (SW1/4) of Section 16, Township 4 North, Range 1 East, as per plat thereof recorded in Plat Book 4, page 83, of the official records of Rapides Parish, Louisiana, said lot containing 27 acres, more or less.
LESS AND EXCEPT:
That certain 1.73 acres sold from Ollie Beall Tudor Gayer unto Robert T. Spruill, et ux, pursuant to Instrument No. 749048 dated March 1, 1982, filed and recorded March 1, 1982, at Conveyance Book 1056, page 296, of the official records of Rapides Parish, Louisiana, as corrected by Instrument No. 761707 dated December 1, 1982, filed and recorded January 18, 1983, at Conveyance Book 1081, page 116, of the official records of Rapides Parish, Louisiana.
That certain property sold to LA DOT at Conveyance Book 839, page 554.

That act of sale also contained a specific reservation of all timber and mineral rights by the vendor.

Spruill and Baudin were divorced by judgment dated February 4, 2002. On June 14, 2002, Baudin filed a petition for partition of the community property. The | ajudgment of final partition of community property and settlement of claims was rendered on June 25, 2003 and signed by the court on October 23, 2003. That judgment awarded the Tudor tract to Baudin. The court further valued the Tudor tract at $142,000.00 and found Spruill entitled to one-half of the value, or $71,000.00.

On September 20, 2004, Baudin filed a petition to fix time for removal of timber. Robert B. Tudor, Jr., Sue Tudor Spruill Miller, Dorothy Tudor McWhorter, and Michael S. Tudor, as the heirs of Gayer, were named as Defendants. In that petition, Baudin recognized the reservation of timber rights contained in the sale and mortgage wherein she and her then-husband purchased the Tudor tract which was awarded to her in the community property partition. Baudin further recognized that sometime in 1993, the timber was partially cut on the Tudor tract but that all of the merchantable timber which existed at the time of sale was not cut. Baudin requested that the court fix a time limit for the cutting of the timber and, in default thereof, recognize her as the owner of the timber. The trial court signed an ex parte order on September 17, 2004, requiring that Defendants remove the merchantable timber which existed on June 20, 1988 on or before November 1, 2004. Defendants then filed a motion to vacate the ex parte order, and said motion was granted by the trial court.

On- December 9, 2004, Spruill purchased all of the merchantable timber on the Tudor tract from the heirs of Gayer. Then, on March 30, 2005, Baudin filed an amended petition for declaratory judgment and, alternatively, to fix time for removal of timber. In that petition, she added Spruill as Defendant and alleged that Spruill acquired ownership of the timber on the Tudor tract from the Gayer heirs and that, consequently, by application of the doctrine of after-acquired title, she was the owner of the timber.

jsThe matter was submitted on briefs, On August 23, 2005, the trial court entered written reasons for judgment wherein it recognized the application of the doctrine of after-acquired title in this case and found Baudin to be the owner of any timber and/or mineral rights in the Tudor tract which she acquired in the community property partition. Judgment recognizing Baudin’s entitlement to the timber rights in and to the Tudor tract was signed on September 13, 2005. Spruill now appeals that judgment.

DISCUSSION

The sole issue in this ease is whether the trial court was correct in applying the doctrine of after-acquired title to find that Baudin is the owner of the timber located on the Tudor tract.

The doctrine of after-acquired title provides that “when a vendor sells property which he does not own and later acquires title, ownership vests in the vend-ee.” Greene v. Greene, 373 So.2d 756, 760 (La.App. 3 Cir.), writ denied, 377 So.2d 118 (La.1979). Therein, this court stated:

Generally, in an after-acquired title situation, the vendor purports to own the property in question which he conveys to the vendee who is under the belief that his vendor does in fact own the property. In the present case, all of the parties to the act of partition were aware that the Liberty Farms tract was owned by others. Therefore, none of the participants in the act of partition could establish a servitude on a piece of land which they did not own.
We find the doctrine of after-acquired title inapplicable in the present case.

Id. at 761.

Louisiana Civil Code Article 464 provides that “[bjuildings and standing timber are separate immovables when they belong to a person other than the owner of the ground.” Thus, the standing timber on the Tudor tract could not have been included in the community property partition as it was not part of the community, LSpruill did not acquire ownership of the timber until December 9, 2004, more than a year after the judgment partitioning the community property was signed on October 23, 2003. At the time of the original sale and at the time of the community property partition, Baudin was aware that Gayer had reserved the timber rights on the Tudor tract. Therefore, we find the doctrine of after-acquired title inapplicable to the facts of this case.

DECREE

The trial court made an error of law in its application of the doctrine of after-acquired title in this case. Accordingly, we reverse the judgment of the trial court which recognized Baudin as the owner of the timber rights in and to the Tudor tract and render judgment finding that Spruill is the owner thereof and giving Spruill until September 1, 2006 to remove all merchantable timber which existed on the Tudor tract on June 20, 1988. Costs of this appeal are assessed to Plaintiff-Appellee, Deborah Dion Baudin.

REVERSED AND RENDERED.

DECUIR, J., concurs and assigns reasons. ■

DECUIR, J.,

concurring.

1,1 agree with the majority and write separately in order to expound upon the after-acquired title doctrine as it pertains to timber rights.

. The question of whether standing timber belongs to the owner of the ground or to another person is to be determined under the Civil Code rules governing acquisition of ownership. The only person capable of conveying title to timber rights is the owner. However, as the majority notes, Louisiana law holds that “where one sells the property of another ... and later acquires title to the property sold by him, the title vests immediately in his vendee.” St. Landry Oil .& Gas Co. v. Neal, 166 La. 799, 118 So. 24, 25 (1928). See also, Plaquemines Parish Gov’t v. State of Louisiana, 01-1027 (La.App. 4 Cir. 4/10/02), 826 So.2d 14, writ denied, 02-1304 (La.9/13/02), 824 So.2d 1170. The rule of after acquired title is broadly applicable and includes the ownership of mineral leases, as in the St. Landry Oil & Gas case, and timber rights.

In order for the doctrine of after-acquired title to apply in this case, the standing timber at issue must have been presumed to be owned by the community prior to its partition, and it must have been purportedly conveyed to Baudin in the community property partition. This court was presented with the question of ownership of certain roadbeds in the case of Lamson Pertoleum v. Hallwood Petroleum, 00-695 (La.App. 3 Cir. 1/31/01), 824 So.2d 1194. In resolving the issue, the court focused on the | ¿property descriptions of the pertinent land sales: “[T]he remaining issue is the alleged acquisition by DeJack under the doctrine of after acquired title. In order to determine whether he acquired title in that manner, it is necessary to determine whether the description in the sale to him includes those tracts, irrespective of the sellers’ [sic] not being owners at that time.” 824 So.2d 1194, 1199. Likewise, in the present case, a review of the act of sale evidencing the community’s acquisition of the property and the judgment of partition transferring ownership to Baudin is dispositive of the timber rights issue.

La.Civ.Code art. 491 states that standing timber is “presumed to belong to the owner of the ground, unless separate ownership is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located.” Standing timber becomes a “separate immovable” when it belongs to a person other than the owner of the ground. La. Civ.Code art. 464. In this case, separate ownership of the timber was clearly evidenced by the language of the act of sale dated June 20, 1988 and recorded in the conveyance records of St. Landry Parish. Therefore, no presumption of the community’s ownership of the timber rights exists which could have possibly passed to Bau-din at the time of the partition.

Similarly, the conveyance of the property to Baudin at the time of the partition did not purportedly include the timber rights for which Baudin could later obtain title. In the property description included in the judgment of partition, timber rights were not mentioned, and as later evidenced by Baudin’s petition for removal of the timber, she had actual knowledge that the timber was not conveyed to her in the partition.

Accordingly, when Spruill purchased the timber rights from the Gayer heirs, he purchased a separate and distinct immovable, “segregated in ownership from the | aland on which it stands.” La.Civ.Code art. 464, Comment (c). I concur in the majority’s decision to reverse the judgment rendered by the trial court.