author: EDWIN A. LOMBARD, Judge. MURRAY, J.,

text:
    HOFFMAN, SIEGEL, SEYDEL, BIENVENU & CENTOLA, APLC, Petitioner v. Delbert LEE, Elana Lee, First Bank and Trust Company, and Paychex, Inc., Defendants.
    No. 2005-CA-1491.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 12, 2006.

      Jacques F. Bezou, The Bezou Law Firm, Covington, LA, for Plaintiff/Appellee.
    William J. Hamlin, Avery Lea Griffin, Hamlin, Griffin & Ellison, LLC, Abita Springs, LA, for Defendant/Appellant.

      (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).

      . Mr. Lee has since plead guilty to four counts of embezzlement.

   EDWIN A. LOMBARD, Judge.

11 Paychex, Inc. appeals the trial court’s denial of its Motion to Stay Proceedings and Enforce Arbitration. For the reasons below, we reverse.

FACTS AND PROCEDURAL HISTORY

On December 10, 1998, Delbert Lee (hereinafter Mr. Lee) executed three contracts with Paychex, Inc. on behalf of New Orleans law firm, Hoffman, Siegel, Seydel, Bienvenu and Centola, APLC (hereinafter Hoffman Siegel). At the time, Mr. Lee was the Chief Financial Officer and Legal Administrator for Hoffman Sie-gel. Hoffman Siegel had employed Mr. Lee for more than twenty years. During that time, Mr. Lee gained the trust of his employers with respect to the handling of the law firm’s management and finances. Therefore, Mr. Lee was responsible for filing all federal and state payroll tax returns. In December 1998, Mr. Lee discharged Hoffman Siegel’s then provider and signed up with Paychex to provide these services.

| ¡According to the contracts, Paychex, Inc. would process electronic funds transfers for Hoffman Siegel, including payment of federal and state taxes on the firm’s behalf. Hoffman Siegel was required to maintain sufficient funds in its bank account to cover all electronic funds transfers. The contract also contained a choice of law clause and the arbitration clause at issue in the instant appeal. The choice of law provision provided that New York law was applicable. The arbitration clause provided that binding arbitration would be required in Rochester, New York for any dispute arising out of the contract.

Paychex, Inc. provided payroll support services under the contract through July 1999. Beginning in July, Hoffman Siegel did not have sufficient funds in their bank account to cover its payroll and taxes. Thereafter, federal and state payroll taxes were not paid for quite some time. According to Hoffman Siegel, they did not learn of the problems with their accounts until March 5, 2004 after receiving a notice from the IRS. Because taxes were not paid, Hoffman Siegel allegedly owed the U.S. Treasury more than $2 million.

Thereafter, Hoffman Siegel filed the instant lawsuit against Mr. Lee, his wife, Elana Lee, First Bank and Trust Company, and Paychex, Inc. Hoffman Siegel alleged that Mr. Lee contracted with Pay-chex, Inc. in an effort to gain control over the firm’s bank accounts in order to embezzle funds. Mr. Lee, according to Hoffman Siegel embezzled large sums of money by writing checks to |shis wife, Elana Lee, in addition to himself. Hoffman Sie-gel, further alleged that Paychex, Inc. was negligent and breached its contract with Hoffman Siegel when Paychex discontinued paying federal and state payroll taxes and failed to inform a partner at the firm that there were insufficient funds in the firm’s bank account. Finally, Hoffman Siegel alleged that First Bank and Trust was negligent in its handling of its accounts and certain IRS payments.

Paychex, Inc. immediately fled the Motion to Stay Proceedings and Enforce Arbitration at issue in this appeal. Paychex, Inc. argued that any dispute under the terms of the contract were subject to arbitration in New York. Hoffman Siegel opposed the motion by alleging that because Mr. Lee entered into the contract with Paychex, Inc. in an effort to gain control over Hoffman Siegel’s account in an effort to embezzle, the contract was void for lack of consent, fraud and error. Additionally, Hoffman Siegel argues that the contract is unenforceable because it is adhesionary.

Paychex, Inc. responded that even if there was fraud, it was on the part of Hoffman Siegel’s agent and not on the part of Paychex, Inc. Any error, Paychex, Inc. argued, was unilateral error and not sufficient to vitiate consent. Additionally, Paychex, Inc. argues that Hoffman Siegel agreed to the contract and only attempted to void the contract after the request for arbitration was filed. Paychex, Inc. also argues that fraud in the inducement is not applicable because Paychex, Inc. did not perpetrate a fraud upon Hoffman Siegel. Finally, Paychex, Inc. argues |4that it did not owe Hoffman Siegel a duty beyond the contract. According to Paychex, Inc., the partners at Hoffman Siegel were on notice that the payroll company had been changed because their paychecks had “Paychex” printed on the top. Also, Pay-chex argues that Hoffman Siegel had an obligation to monitor its own finances.

At a hearing on the matter, the trial judge denied Paychex, Inc.’s motion to compel arbitration. According to the trial court, Sutton’s Steel & Supply, Inc. v. BellSouth Mobility, Inc., 2000-511 (La. App. 3 Cir. 12/13/00), 776 So.2d 589, controlled and held that the contract was one of adhesion. The court did not determine whether the contract was void for lack of consent. Paychex, Inc. appealed the trial court’s ruling refusing to compel arbitration.

For the reasons below, we reverse the ruling of the trial court.

LAW AND ANALYSIS

Standard of Review

The issue of whether the trial judge should have compelled arbitration is a question of law. Dufrene v. HBOS Mfg., LB, 2003-2201 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206, 1209 (citing Billieson v. City of New Orleans, 02-1993, p. 3 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 560). Therefore, when reviewing the grant or denial of a motion to compel arbitration, appellate courts determine whether the trial was legally correct or incorrect. Id. However, “[i]f the trial court’s decision was based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such [an] incorrect decision is not entitled | sto deference by the reviewing court.” Id (citing Conagra Poultry Co. v. Collingsworth, 30,155, p. 2 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280, 1281-82).

Judicial Confession

On appeal, Paychex, Inc. argues for the first time that Hoffman Siegel cannot argue that the contract is invalid because they have made a judicial confession in their petition for damages. According to Paychex, Inc., because Hoffman Siegel alleged that the contract was breached, they are prohibited from arguing fraud. We disagree.

Louisiana Civil Code article 1853 states that “[a] judicial confession is a declaration by a party in a judicial proceeding.” It is “a party’s explicit admission of an adverse factual element and has the effect of waiving evidence as to the subject of the admission-of withdrawing the subject matter of the confession from issue.” Cichirillo v. Avondale Indus., Inc., 2004-2894 (La.11/29/05), 917 So.2d 424, 429 (citing Cheatham v. City of New Orleans, 378 So.2d 369, 375 (La.1979)). However, a party may amend the pleadings to cure any errors or omissions absent a showing that the adverse party was misled or deceived. Sinha v. Dabezies, 590 So.2d 795, 798 (La.App. 4 Cir.1991).

Hoffman Siegel refers to the “contract” several times in its petition and alleges that the contract was breached. Therefore, Paychex, Inc. asserts that allegations regarding breach of the contract mandate that we declare that Hoffman Siegel has made a judicial confession that a valid contract existed. Even if that were the case, Hoffman Siegel amended its petition to allege defects in the contract, thereby curing any judicial confession.

| (¡Contracts of Adhesion

The trial court based her decision to deny the motion to compel arbitration on Sutton's Steel & Supply, Inc. v. BellSouth Mobility, Inc., 2000-511 (La.App. 3 Cir. 12/13/00) 776 So.2d 589. BellSouth involved a class action lawsuit by consumers against BellSouth Mobility. The cell company subscribers sued BellSouth alleging that the company engaged in a pattern of misrepresenting its fees. BellSouth countered with several exceptions that are not relevant here, which were denied. Thereafter, BellSouth filed a motion to stay and compel arbitration. The trial court denied the motion and BellSouth appealed.

On appeal, the Louisiana Third Circuit reviewed the contract at issue and held that the contract was one of adhesion. The court first noted that according to Louisiana Civil Code article 1983, the contract is the law of the parties and the courts will not relieve parties of bad bargains. BellSouth, 776 So.2d at 592-93 (quoting Hanover Petroleum Corp. v. Tenneco, Inc., 521 So.2d 1234 (La.App. 3 Cir. 1988), writ denied, 526 So.2d 800 (La. 1988)). The court went on to say that the law does not require the parties to read every detail. However, the parties will be held to each portion as if each had been read. Id. at 593 (quoting McGoldrick v. Lou Ana Foods, Inc., 94-400, p. 8 (La.App. 3 Cir. 11/2/94), 649 So.2d 455, 460.)

However, the Third Circuit opined, the courts will not uphold agreements that are not formed with the benefit of the bargaining process. Id. at 593. Such contracts often stem from interactions with large business concerns entering into innumerable contracts, as with utility companies, airlines or insurance companies. Id.

“Contracts of adhesion are usually contained in standard forms ... in small print ... [and] present difficulties of interpretation concerning advantages allow to a party in the stronger position. That is actually a problem of |7acceptance, as the real question is whether the other party truly consented to all the printed terms.”

Id. at 593 (quoting Consent Revisited: Offer Acceptance Option Right of First Refusal and Contracts of Adhesion in the Revision of the Louisiana Law of Obli- gabions, 47 La.L.Rev. 699, 757-59 (1987)). Also important to the Third Circuit court was whether the contract greatly limited the rights of one of the parties, such as in airline ticket purchases or public utility contracts. Id.

The Third Circuit held that the Bell-south contract was one of adhesion for several reasons. First the court determined that the font size was exceedingly small. Second, the court determined that BellSouth presented no evidence that the consumers had any bargaining power. Further, the court held that the arbitration provisions were unduly burdensome upon the plaintiffs because the plaintiffs were required to arbitrate, while BellSouth reserved the right to litigate any debts owed by the plaintiffs in district court.

Since the time that BellSouth was decided, the. Louisiana Supreme Court has ruled on the issues of adhesionary contracts and arbitration clauses. In Aguillard v. Auction Management Corp. 2004-2804 (La.6/29/05), 908 So.2d 1, the plaintiffs were patrons of an auction house. Upon entering the auction house, the plaintiffs were provided with a sales brochure, which included photographs of the merchandise and the rules of the auction. The entire document was printed in nine-point font, including the arbitration clause. All bidders were required to sign the document prior to receiving a bid number. The plaintiff signed the document prior to bidding. However, no representative of the defendant auction house signed the document.

|sFoIlowing a dispute on an auction purchase, the plaintiff sued the auction house. The auction house moved to submit the matter to arbitration citing the arbitration clause in the sales brochure. The district court denied the motion. The Louisiana Third Circuit affirmed on appeal holding that the contract was adhesionary and lacked mutuality. The Louisiana Supreme Court granted the writs.

The Supreme Court first stated that arbitration is favored under both the Louisiana and the United States jurisprudence. Aguillard, 908 So.2d at 7. Next the Court discussed contact of adhesion. Id. at 9. A contract of adhesion, according to the Louisiana Supreme Court is “a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Id. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.” Id. However, the Court held that not every standard contract is a contract of adhesion. Id. at 10 (citing Golz v. Children’s Bureau of New Orleans, 326 So.2d 865, 869 (La. 1976)). A standard contract is just one indicator that a contract may be adhesion-ary. Id. The important issue is the consent of the parties to all of the printed terms of the contract. Id. The emphasis, therefore, is whether the contract unduly burdens the party with the weaker bargaining position. Id. “Once consent is called into question, the party seeking to invalidate the contract as adhesionary must then demonstrate the non-drafting party either did not consent to the terms in dispute or his consent was vitiated by error ...” Id.

The Court went on to resolve the split between the circuits regarding arbitration clauses. The Second and Fourth circuits employed a liberal reading of arbitration clauses in contracts. Id. at 11. In contrast, the First and Third circuits | nemployed a very conservative policy with regard to arbitration. Id. at 13. The Supreme Court held that the more liberal policy, employed by the Second and Fourth circuits, was more appropriate. Id. at 16.

The Court then reviewed the contract at issue to determine whether it was a contract of adhesion. The Court noted that the font on the document was not unusually small. Id. Additionally, the font did not differ greatly from that of the rest of the document. Id. Also, the Court noted that the paragraphs were separated by spaces and was only two pages long. Id. The Court further held that there is a presumption of arbitrability. Id. The Court found that the arbitration agreement limited the rights of both parties, and not just the weaker party. Id. at 17. Moreover, the Court did not believe that there was a discrepancy in bargaining power between the two parties. Id. The plaintiff was not compelled to enter into it and could have possibly negotiated the terms if he did not agree. Id.

Considering the foregoing, we hold that the trial court erred when it concluded that the contract herein was a contract of adhesion based on the principles found in the Third Circuit BellSouth case. Therefore, the trial court was legally incorrect per the Louisiana Supreme Court’s holding in Augillard. Therefore, we review the instant matter de novo.

We begin by reviewing the instant ease utilizing the factors enumerated by the Louisiana Supreme Court. First, we look at the font size and paragraph structure of the instant contract. The entire contract was printed in relatively small print. The arbitration clause did not appear to be significantly smaller than other portions of the contact. The three contracts totaled six pages. Within those six pages, the arbitration clause was stated twice.

ImSecond, we look at the bargaining power of the parties. From the record in front of us, there is no evidence that Hoffman Siegel was compelled to enter in the contract with Paychex, Inc. Other service providers were available to provide this service and were in fact providing this service to Hoffman Siegel. Also, no evidence has been presented to demonstrate that Hoffman Siegel was in an inferior bargaining position.

Finally, we look at the limitations and hardships placed on the parties under the terms of the arbitration clause. Arbitration under the current contract would require the parties to proceed in Rochester, New York in accordance with the rules of the American Arbitration Association. The most problematic provision found in the arbitration clause is the one that allows Paychex, Inc. in its own discretion to litigate its claims for money under the contract. The issue, therefore, in this case is whether inconvenience alone is sufficient to invalidate a contract where the “weaker party” had the ability to negotiate the terms of the contract or simply to utilize another service provider. We hold that it is not. Therefore, we reverse the trial court’s ruling that the contract is a contract of adhesion.

APPARENT/ACTUAL AUTHORITY

Because we are reviewing this matter de novo, we will also comment on the other issues raised by the parties on this matter in the trial court.

The principal may confer upon the man-datary the express authority to do what is appropriate under the circumstances. La. C.C art. 2994. Louisiana Civil Code article 3010 provides that the mandatary is bound to perform only those duties within the scope of the authority granted by the principal. However, the mandatary may also perform all acts incidental to the necessary performance of the mandate. La. C.C art. 2995.

| n Louisiana jurisprudence created the doctrine of apparent authority in an effort to protect third parties “unauthorized acts of an apparent agent.” Boulos v. Morrison, 503 So.2d 1, 3 (La.1987). In order for apparent authority to apply, the “principal must first act to manifest the alleged agent’s authority to an innocent third party;” and the “third party must rely reasonably on the manifested authority of the agent.” Id. The third party cannot simply rely on the apparent authority of the putative agent and must inquire into the extent of the power of the manda-tary. Id. The third party must have a reasonable belief based on the facts that the putative mandatary in fact has authority. Salley v. Colonial Marine Indus., Inc., 95-2215 (La.App. 4 Cir. 09/11/96), 680 So.2d 1242, 1250.

Louisiana Civil Code article 3021 states “one who causes a third person to believe that another person is his mandatary is bound to the third person who in good faith contracts with the putative manda-tary.” However, under certain circumstances, a third party may not rely on the apparent authority of the mandatary, authority must be express. According to Louisiana Civil Code article 2997(5), express authority must exist in order to refer a matter to arbitration.

In its Petition for Damages, Hoffman Seigel stated that Mr. Lee “gained the complete trust and confidence of the officers, directors, associate attorneys and staff with respect to the management of the law firm and the handling of its finances.” In his capacity as Legal Administrator/Chief Financial Officer, Mr. Lee had the responsibility for filing of all federal and state payroll tax returns.

In its First Supplemental and Amending Petition, Hoffman Seigel again stated that Mr. Lee gained the trust and confidence of management. In the amended petition, Hoffman Seigel alleged that Mr. Lee failed to show the contract 112to management and did not have the authority to sign the contract with Paychex, Inc.

Hoffman Seigel further alleged in its response to Paychex, Inc.’s appeal that Mr. Lee did not have express authority. Further, if Mr. Lee had apparent authority, Paychex, Inc. did not act reasonably and at the very least “from 1999 forward, Paychex was on notice of problems in the account and, thus, on notice that Mr. Lee might be acting beyond the scope of his apparent authority.” Hoffman Seigel further states that “[m]ost of the money was stolen AFTER Paychex was placed on notice of Mr. Lee’s lack of authority.” (Emphasis theirs).

Paychex, Inc. counters, arguing that because Mr. Lee was the .Legal Administrator/Chief Financial Officer, Mr. Lee did in fact have express authority to enter into the contract at issue. Additionally, Pay-chex, Inc. argues that the partners cannot argue that they had no knowledge of the contract signed by Mr. Lee because each of them received paychecks and tax forms with “Paychex, Inc.” stamped on them. Therefore, Paychex, Inc. argues that Hoffman Seigel should not be able to go back in hindsight and argue that Mr. Lee did not have the proper authority or that Pay-chex, Inc. acted unreasonably in relying on Mr. Lee’s authority as Legal Administrator/Chief Financial Officer AFTER the contract had already been signed. (Emphasis ours).

Hoffman Siegel has produced no information or documentation to dispute its own statements that Mr. Lee handled the finances of the law firm and that Mr. Lee was responsible for matters dealing with the payment of tax liabilities. The execution of the instant contract is within the authority of Mr. Lee to perform his duties for the maintenance of the tax accounts. Therefore, the trial court erred when it failed to stay the proceedings and compel arbitration.

|1SFRAUD

According to Louisiana Civil Code article 1948, consent may be vitiated by error, fraud or duress. Fraud for this purpose is defined as “misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. C.C. Art.1953. A party has an action based in fraud for the fraud or deceit committed by another. Sun DrillingProducts Corp. v. Rayborn, 2000-1884 (La.App. 4 Cir. 10/3/01), 798 So.2d 1141, 1152.

Hoffman Seigel does not argue that Paychex, Inc. committed a misrepresentation or fraudulently induced it to sign the contract. Instead, Hoffman Siegel argues that the instant contract should be vitiated because Mr. Lee (it’s agent) signed the contract in an effort to perpetrate a fraud. Clearly, if the contract were between Mr. Lee and Hoffman Siegel then the contract would be void for lack of consent. However, Hoffman Siegel has produced no evidence demonstrating that Paychex, Inc. committed fraud in a manner to vitiate consent. Hoffman Siegel is attempting to attribute Mr. Lee’s fraudulent intent to Paychex, Inc. instead of to Mr. Lee. We hold that there was not fraud in the inducement of the contract. Therefore, the trial court erred in denying Pay-chex, Inc.’s request to compel arbitration.

CONCLUSION

We hold that the contract between Pay-chex, Inc. and Hoffman Siegel is valid and the arbitration clause enforceable. Therefore, we reverse and remand to the trial court for proceedings in accordance with this judgment.

REVERSED AND REMANDED.

MURRAY, J., concurs and assigns reasons.

MURRAY, J.,

concurring and assigning reasons.

hi agree with the majority’s conclusion that the arbitration clause does not render the contract adhesionary in the instant case. However, I do not subscribe to the majority’s view that a contractual provision such as the one at issue represents a “mere inconvenience.” Under any circumstances, a contractual provision that requires one party to submit contractual disputes to arbitration but permits the other party elect between arbitration and some other forum is onerous, and in some cases may render the contract adhesionary. In the instant case, however, both parties are compelled to arbitrate all disputes arising out of the contract except for those concerning “moneys due and owing from client to Paychex,” which disputes Paychex may, at its sole discretion, elect to litigate. Considering that only one category of disputes is affected by this lopsidedness of rights, and further that Hoffman, Siegel, as a law firm, is a clearly sophisticated client, I find in the instant case that the contract is not adhesionary. Accordingly, I respectfully concur in the result reached by the majority.

      . Mr. Lee executed the Paychex Electronic Network Services Agreement, the Paychex Service Agreement and the Paychex Human Resource Agreement.

      . The contract also included a choice of law clause, stating that New York law would be applicable. The parties have not addressed this issue.

      . Hoffman Siegel alleges that taxes were not paid for sixteen quarters. Evidence has not been presented to determine the accuracy of this number.

      . According to Hoffman Siegel, they were only sent one delinquency notice dated February 4, 2004.

      . First Bank and Trust is not a party to this appeal. First Bank and Trust filed a Dilatory Exception of Vagueness or Ambiguity that is not at issue in the instant appeal.

      . We limit our discussion to the issues regarding the signing of the contract and not the reasonability of Paychex, Inc.'s actions after the contract was signed.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    THE COUNCIL OF THE CITY OF NEW ORLEANS v. SEWERAGE & WATER BOARD OF NEW ORLEANS; Boh Bros. Construction Co., L.L.C.; Renaissance Integrated Solutions, LLC; and Ris New Orleans, LLC.
    No. 2005-CA-0384.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 12, 2006.
    Russ M. Herman, Sidney A. Cotlar, Steven J. Lane, David K. Fox, Soren E. Gisle-son, Herman, Herman, Katz & Cotlar, LLP, New Orleans, Counsel for Plaintiffs/Appellants.
    Gerard M. Victor, Special Counsel, Sewerage & Water Board of New Orleans, Baton Rouge, Counsel for Defendant/Ap-pellee (Sewerage and Water Board of New Orleans).
    Sherry S. Landry, Former City Attorney, Thomas A. Robichaux, Assistant City Attorney, Janita L. Reliford, Assistant City Attorney, Joseph V. DiRosa, Chief Deputy City Attorney, New Orleans, Counsel for Intervenor (The City of New Orleans).
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F McKAY, III and Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

LOn February 1, 2005, the New Orleans City Council (“Council”) filed a Petition for Injunction against the Sewerage & Water Board of New Orleans (“S & WB”), Boh Bros. Construction Co., L.L.C., Renaissance Integrated Solutions, L.L.C., and RIS New Orleans, L.L.C. for the unlawful laying of fiber optic cable while they were digging up and replacing leaking sewer pipes. The pipe replacement work was undertaken pursuant to orders of the U.S. environmental Protection Agency. The Council alleged specifically that the S & WB laid the fiber optic cable alongside the new pipe without a franchise from the City Council.

The S & WB filed an exception of no right of action which the trial court granted and dismissed the Council’s suit. The trial court’s oral reasons for the dismissal were that the New Orleans City Council did not have the capacity to bring this suit and it is not a juridical person. The Council appeals.

DISCUSSION:

At issue in this case is whether the Council has the authority to bring and enforce this action.

1 aThe New Orleans Home Rule Charter Art. Ill, § 128(1) states:

The Council shall have the power to grant franchises, privileges and permits, fixed or indeterminate, for the use of the streets and other public places for the furnishing of any service to the City or to its inhabitants subject to applicable state or municipal law. Ail franchises, privileges and permits and any renewals, extensions and amendments thereof, shall be granted only by ordinance. All such proposed ordinances shall be submitted to the Department of Utilities or its successor and it shall render to the Council a written report containing recommendations thereon.

Moreover, Home Rule Charter Art. Ill, § 130(1) states:

The Council of the City of New Orleans shall have all powers of supervision, regulation, and control consistent with the maximum permissible exercise of the City’s home rule authority and the Constitution of the State of Louisiana and shall be subject to all constitutional restrictions over any street, railroad, electric, gas, heat, power, waterworks, and other public utility providing service within the City of New Orleans including, but not limited to the New Orleans Public Service, Inc. and the Louisiana Power and Light Company, their successors or assigns.

In light of the above-quoted provisions, there can be no doubt that the Council has legislative authority to regulate and supervise utilities, including franchises.

The Executive Branch and its Unattached Board, S & WB, argue, however, that these articles do not grant the Council the power of enforcement. They contend the power of enforcement belongs to the executive branch, that is, |3the Mayor of the City of New Orleans and the administrative departments. Home Rule Charter, Art. IV, § 101.

The Executive Branch cites Home Rule Charter, Art. Ill, § 130(3), to support its position, to wit:

The City of New Orleans may institute or participate in any proceeding affecting the City Council’s powers of supervision, regulation and control granted hereunder over public utilities or affecting in any way the interests of the ratepayers of the City of New Orleans, and any recovery or benefit derived from any such proceeding shall be allocated by the City Council as it deems fit and proper, pursuant to such reasonable rules and regulations as the Council may adopt.

From this provision it infers that only the City of New Orleans via the executive branch and the legal department may initiate or participate in legal actions on behalf of the City Council to protect its authority. This is in accord with Home Rule Charter Art. IV, § 401, which states that the City Attorney directs the legal affairs of the City of New Orleans.

The City relies upon several eases from the federal system to make a separation of powers argument in support of its position. We agree with the Council that the analogy is inapposite because, as will appear infra, we do not find the Council infringed upon any power or prerogative of another branch of City government.

The S & WB relies upon City Council of City of Lafayette v. Bowen, 94-584, (La. App. 3 Cir. 11/2/94), 649 So.2d 611, which held that the Lafayette City Council is not a juridical person and is not an entity to which the law attributes personality in support of its argument that the New Orleans City Council is not a | Juridical person. However, that argument does not take into account significant differences between the Lafayette City Charter and the Charter for the City of New Orleans. Significantly, we note the Lafayette Charter at issue in Bowen, supra, created a “Mayor-council” form of government. The Mayor was designated the chief executive office and head of the executive branch. The council was designated the legislative branch. Section 2-04 of that Charter gave the council “all powers of the City” except as otherwise provided by law or in the Charter. The Third Circuit specifically noted that the Charter was “clearly silent” on the issue of whether the council could sue and be sued independently of the City of Lafayette and the Mayor.

In the instant case however, New Orleans Home Rule Charter, Art. IV, § 403, provides:

(1) No special council (sic) shall be retained to represent the City or any officer, department, or board except the Sewerage and Water Board, the Department of City Civil Service, the Public Belt Railroad Commission, and the Board of Liquidation, City Debt, and except as may herein be otherwise provided.
(2) The Council may, by two-thirds vote of its entire membership, employ special counsel for itself.
(3) The Council may, by two-thirds vote of its entire membership, authorize any officer, department or board to employ special counsel for any special matter presenting a real necessity for such employment, provided any such authorization shall specify the compensation, if any, to be paid for said services.

We acknowledge that any exercise of executive authority by the Council cannot be implied, but rather must be expressly granted. While we note the ^possibility of different interpretations of the applicability of Art. Ill § 130(3) vis-a-vis Art. IV § 403(2), La. Civil Code art. 9, guides our interpretation. It states that when a law is clear and unambiguous and its application does not lead to absurd consequences, no further interpretation may be made in search of the intent of the legislature. Therefore, since (1) the Council did vote by two-thirds of its entire membership to employ special counsel for itself, (2) Art. IV, § 403(2) grants that authority expressly, and (3) we cannot find that the Council’s capacity to sue to enforce its franchise authority leads to an absurd consequence, it was improper for the trial court to grant the S & WB’s exception of no cause of action based upon lack of juridical capacity-

For the aforementioned reasons, we reverse the trial court and remand.

REVERSED AND REMANDED

      . The definition of "franchise” in BLACK’S LAW DICTIONARY 658 (6th Ed.1990) is: A special privilege to do certain things conferred by government on individual or corporation, and which does not belong to citizens generally of common right; e.g., right granted to offer cable television service.

      . Home Rule Charter Art. V § 301, continues the existence of the S & WB, and composes it of the Mayor, two at large members of the Council, one of the district Councilmembers selected by the Council, and two members of the Board of Liquidation, City Debt and seven citizens appointed by the Mayor with Council approval. See also H.R.Charter Art. IV § 206(e).


author: DREW, J.

text:
    Daphne M. AGNOR (a/k/a Angor), Individually and as Tutrix of the Minor, Delana Marie Spinks Plaintiff-Appellee v. CADDO PARISH SCHOOL BOARD Defendant-Appellant.
    No. 41,224-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 1, 2006.
    Rehearing Denied Aug. 17, 2006.

      Gordon E. Rountree, A.P.L.C., Shreveport, Counsel for Appellant.
    Tyler & Johnson, LLC, By Tommy Jan Johnson, Shreveport, Counsel for Appel-lee.
    Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

hThe Caddo Parish School Board appealed the judgment awarding damages to Daphne M. Agnor, individually and as tu-trix of her child, Delana Marie Spinks, for the child’s injuries sustained in a fall at school. Following a bench trial, the trial court apportioned fault 75% to the Caddo Parish School Board and 25% to the child. The parties stipulated that medical expenses were $6,647.93. Additionally, the trial court awarded plaintiffs $25,000 for general damages subject to a 25% reduction due to the fault apportioned to the child, and the defendant now appeals. We affirm, adopting and reproducing the trial court’s thoughtful, scholarly, and thorough reasons for judgment, which are attached as an appendix.

DISCUSSION

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 01-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State, Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis |2does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

On appeal, the school board complained that the trial court erred in deciding:

• the teacher gave inadequate supervision,
• the floor was unreasonably dangerous,
• the floor was a cause-in-fact of the fall,
• discretionary immunity under La. R.S. 9:2798.1 did not protect the school board from liability;
• the school board was 75% liable and the child was 25% liable, and
• $25,000 was the appropriate general damage award.

The supreme court in Wallmuth v. Rapides Parish School Board, 2001-1779 (La.4/3/02), 813 So.2d 341, 346, stated:

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision.

Citations omitted.

While the foregoing is a succinct statement of the law, the Wallmuth case is factually inapplicable to this matter, since Wallmuth dealt with an intentional tort involving older children (i.e., fighting).

Here, the school board argued that there was adequate supervision for what was a instantaneous, unforeseeable event for which the school was not responsible. The trial court was not clearly wrong in holding that there was 1 ^inadequate supervision (a violation of the duty to protect the young child) and an unreasonably dangerous condition which was a cause-in-fact of the foreseeable harm.

La. R.S. 9:2798.1(B) states:

Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

The school board argued that the teacher’s discretionary acts in supervising the children’s use of the restrooms make this immunity applicable here. The trial court cited Gary on Behalf of Gary v. Meche, 93-271 (La.App. 3d Cir.11/3/93), 626 So.2d 901, which stated that 9:2798.1 did not immunize the school board from tort suits related to its responsibility for the supervision of children. After being dismissed from school, a six-year-old ran into the street and was struck by a truck. The court found the school had abdicated its responsibility to supervise its youngest students. Gary, supra. Likewise, in this case, neither the school nor the school board had a policy about young playful children carrying pencils into bathrooms which the school personnel knew had damp, slippery floors.

The school board also argued that the trial court erred in apportioning only 25% of the fault to Delana Spinks, because Delana admittedly broke three rules that contributed to the accident. While the trial court found that |4PeIana did share negligence because she knew the rules and chose to break them, the court also found that, due to Delana’s young age and the number of her infractions, 25% was a proper allocation of fault. Not only was the school board aware of the dangerous, wet condition of the floor and the propensity of pencils to cause injury, but the bathroom monitor designated by the teacher was a third-grader who was unlikely to tattle on her classmates for breaking the rules.

The school board contends that the trial court’s award of $25,000 in general damages was excessive due to the fact that Delana returned to school within one week, and has experienced no residual sinus or visual problems since the accident. It is the school board’s position that the upper limit of general damages should be only $10,000 to $12,000. The trial court found that, due to the unusual circumstances surrounding this accident, the award of $25,000 in general damages to Delana was appropriate. This was a traumatic and shocking injury, so much so that medical personnel came in and out of the room simply to view it, causing Delana to believe she was dying. She underwent anesthesia and surgery, and when she returned to school she was teased by other children. She suffered nightmares and teasing after the accident. The damage award was within the trial court’s discretion and reasonable under the facts of this case.

CONCLUSION

In every regard, the trial court was wise in its rulings. We agree and adopt its reasons in toto. Neither party is clearly 100% at fault for the unfortunate incident of February 14, 2001. WTiile the school board was ) ¿negligent in its failure to address unreasonably dangerous conditions, Delana Spinks was also negligent in her failure to acknowledge long-implemented school rules. However, as mentioned above, due to Delana’s young age and the number of her infractions, as compared to the defendant’s choice to ignore the obvious risks associated with this accident, the fault apportionment was appropriate. The trial court’s conclusions of fact were justified by the record, and there was no abuse of discretion on the part of the trial court.

DECREE

The judgment of the trial court is AFFIRMED.

APPENDIX

DAPHNE M. AGNOR, INDIVIDUALLY AND AS TUTRIX OF THE MINOR, DELANA MARIE SPINKS

VERSUS

CADDO PARISH SCHOOL BOARD

NUMBER: 464,417-B

FIRST JUDICIAL DISTRICT COURT CADDO PARISH, LOUISIANA

FILED SEP 28 2005

FINDINGS OF FACT AND REASONS FOR JUDGMENT

_jjThis suit arises out of an incident that occurred on February 14, 2001, when Dela-na Spinks, a third grade student at Forest Hills Elementary School, fell in the girls’ restroom. The pencil she was holding in her hand lodged into the area immediately beneath her right eye when she tried to break her fall. The pencil was later removed during surgery. Although the Incident was quite traumatic at the time, as shown by the pictures introduced at trial, Delana did not suffer any vision loss or permanent damage. Delana’s mother, Daphne Agnor, as Tutrix, filed suit against the Caddo Parish School Board seeking damages for her daughter’s injuries. This matter was tried as a bench trial on September 8, 2005. The Court heard testimony from (1) Michael Puyear (Delana’s third grade teacher); (2) Sara Ebarb (the school principal); (3) Brooke Levendikis (Dela-na’s friend and classmalé); (4) Daphne Agnor (Delana’s mother and tutrix); (5) Delana and (6) Oscar Killian (the assistant principal). Numerous exhibits were introduced into evidence. The parties filed comprehensive pre-trial briefs and post-trial memoranda. The Court has thoroughly considered all of the evidence, the parties’ briefs and memoranda, and the applicable law. For the reasons assigned below, the Court finds that under all the unique circumstances presented by this case, the accident was caused by the fault and negligence of both the Caddo Parish School Board and Delana Spinks. The Court allocates 75% of the fault to the Caddo Parish School Board and 25% of the fault to Delana. The Court finds that the appropriate award for damages (prior to reduction for Delana’s fault) is $6,647.93 for the stipulated amount of the medical expenses and $25,000.00 for the general damages. Thus, the plaintiff is entitled to an award in the amount of $23,735.95 (75% of $31,647.73), together with legal interest. Costs are assessed 25% to plaintiff and 75% to defendant.

12FACTUAL BACKGROUND

Delana was 8 years and 10 months old and in the third grade at the time of the accident. She and twenty (20) other students were in Mr. Michael Puyear’s class for most of each school day. The class was located in a “temporary classroom building,” away from the main school buildings. Twice a week the students attended a science enrichment lab in the main building at either 1:00 p.m. or 12:15 p.m., depending on the day. The students walked along a sidewalk towards the “inside” school building. The students would have a restroom stop on the way to the lab. The bathrooms usually used by Mr. Puyear’s students were referred to as “the outside bathrooms,” as the doors were located on the outside of the main school buildings. There was another set of bathrooms inside the main building with inside doors, and these were referred to as the “inside bathrooms.” Mr. Puyear testified the inside bathrooms were usually being used by a fourth grade class and so his class primarily used the outside bathrooms. Mr. Puyear testified he routinely warned the children that the outside bathroom floors were slippery and slick and to use caution.

On the date of the accident, the weather was described by all as misting rain. The title floor of the outside girls’ bathroom was damp and wet in some places. Delana and her friend Brooke both testified that the floor was always wet near the sink area due to students splashing water from the sinks. The evidence is undisputed that at the time of the incident the school required the students to carry their own pencils to the science enrichment lab. However, it developed at trial that the procedure pertaining to what was to be done with the pencils en route while the children were in the restrooms was less than clear. Prior to trial and in response to discovery propounded by the plaintiff, the school board responded as follows:

INTERROGATORY NUMBER 9:

Were the students in the class of Delana Marie Spinks -instructed/ordered to carry pencils in their hands from outside detached buildings to the main building of the school to amend another class?

ANSWER TO INTERROGATORY NUMBER 9:

Yes, with exception of when they went to the bathroom. Then, they were to give their pencils to the monitor while in the bathroom. ■

| ¡¡INTERROGATORY NUMBER 10:

If the answer to interrogatory number 9 is in the affirmative, what are the names, addresses, and telephone numbers of the person/persons that created the policy/custom and the names, addresses and telephone numbers of the persons that authorized the policy/custom?

ANSWER TO INTERROGATORY NUMBER 10:

Sara Ebarb, principal.

REQUEST FOR PRODUCTION OF DOCUMENTS NUMBER 1:

Please produce all written policies, procedures, and/or protocol pertaining to students handling, carrying, and/or possessing sharp instruments while on school property in existence at the time of the accident the subject of this lawsuit.

RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS NUMBER 1:

No written policy on pencils, only verbal.
At the trial the principal did not recall that she or the school had a set policy as to what was to be done with the pencils when the children went into the restroom en route to the science lab. She testified she was unaware that the children were taking the pencils into the restroom. She indicated the rule in the discovery response that the children were to give the pencils to the monitor would have been an individual teacher’s rule. Mr. Puyear testified that his procedure was to have a monitor in both the girls’ and boys’ bathrooms. The two monitors would come from his third grade class, and the monitors changed on a daily basis. The children were instructed to (1) either hand the pencil to the monitor in the bathroom, or (2) put the pencil on the sink while using the restroom. Delana and her classmate Brooke both testified that they understood from Mr. Puyear’s rules they were supposed to give the pencil to the monitor or put it on the sink. They testified that all the girls routinely ignored these rules and kept their pencils with them while in the bathroom. The monitors apparently did not “tattle,” and Mr. Puyear was unaware that the students were violating the rules.
The school also had verbal rules which were given to the students which prohibited playing in the bathrooms and prohibiting the students from lingering in the bathroom after washing their hands. De-lana acknowledged that she was aware of these school rules in addition to Mr. Puy-ear’s rules concerning the pencils in the bathroom.
|4On the date of the incident, Delana testified she took her pencil into the stall with her. After exiting the stall she put her pencil on the sink while washing her hands. Instead of promptly leaving the bathroom at that point, she picked up her pencil and engaged in a “sliding game” with several other girls. The girls would run across the damp and wet tile floor and slide and see who could slide the furthest. This is when the unfortunate incident occurred. Delana testified that she lost her balance after she had completed her slide. She fell on the pencil in her hand when she tried to break her fall. It penetrated her face right below her right eye and near her nose. Delana acknowledged at trial that she broke three rules — (1) playing in the bathroom, (2) failing to give the pencil to the monitor and/or keeping it on the sink, and (3) failing to promptly leave the restroom after washing her hands.
Mr. Puyear heard her screams and immediately ran in the bathroom. He carried her to the office and kept her from pulling the pencil out. The principal calmed Delana down and 911 was called. Delana was taken to LSU Medical Center. After a CT scan, surgery was performed to remove the pencil. The pictures show two or three small stitches beneath her eye. Delana spent one night in the hospital and returned to school about a week later. This event traumatized not only Delana, but also her family, Mr. Puyear and Mrs. Ebarb.

CLAIMS OF PLAINTIFF

The plaintiff contends the School Board was negligent in having the procedure of requiring the students to carry their pencils from the temporary building to the main building for the science lab; in failing to close the outside bathrooms during rainy days; in failing to warn the students that the floor of the bathroom was slippery, and/or in failing to clean and dry the floor; and in having a third grade student monitor and be in charge of supervising the girls in the bathroom.

POSITION OF DEFENDANT

In the pre-trial order the position of the defendant was as follows:

“... that the procedure of requiring the students to take their pencils with them from the T-building to the main building was reasonable, especially considering the alternative, which would have been to allow the students to use community pencils 1 sin the science lab, which facilitates the spread of germs. There had been no prior accidents resulting from the students taking their pencils with them from the T-building to the main building.
Further, the protocol was for the pencils to be collected by a monitor designated by the teacher, Mr. Puyear, while the students were using the bathroom. The day in question, 2/14/01, Mr. Puyear warned the students that the floor in the bathroom would be slippery and sweaty because of the misting rain and cautioned the students not to play, run or slide in the bathroom. There was a school rule against playing in the bathroom.
Delana Spinks violated the school rule against playing in the bathroom and admittedly was sliding in the girls’s bathroom while still having her pencil in her hand. She lost her balance, fell, while playing, and the pencil jammed into her face just below her right eye. Defendant contends the sole cause of the accident was the negligence of Delana Spinks in violating the school rule. Defendant contends that had Delana Spinks not been sliding and playing, even with the pencil in her hand, an accident would not have occurred. Reasonable supervision existed at all times. Alternatively, defendant contends R.S. 9:2798.1, discretionary immunity applies. The defendant also pled the negligence of Delana in its answer to the suit.

APPLICABLE LAW

The duty-risk analysis under La. C.C. art. 2315 is as follows:

(1) Was the conduct of which the petitioner complains a cause in fact of the resulting harm?
(2) What, if any, duties were owed by the respective parties?
(3) Whether the requisite duties were breached?
(4) Was the risk, end harm caused, within the scope of protection afforded by the duty breached?
(5) Were actual damages sustained?

This case presents legal issues pertaining to both “supervision” and “slip and fall” eases.

In Wallmuth v. Rapides Parish School Board, 2001-1779 (La.4/3/02), 813 So.2d 341, the Louisiana Supreme Court set forth the standard of care applicable to a school board in supervision cases:

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. La. Civ.Code art. 2320; Adams v. Caddo Parish School Bd., 25,370 (La.App. 2 Cir. 1/19/94), 631 So.2d 70, writ denied, 94,-684 (La.4/29/94), 637 So.2d 466. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Jackson v. Colvin, 98-182 (La.App. 3 Cir. 12/23/98), 732 So.2d 530, writ denied, 99-228 (La.3/19/99), 740 So.2d 117. This duty does not make the school board the insurer of the safety of the children. Id. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Adams, 631 So.2d 70.
Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. Id. “Injury from horseplay between discerning students which, at some stage may pose an unreasonable risk of harm to the participants, does not automatically and of itself render the supervising authority liable.” Henix v. George, 465 So.2d 906, 910 (La.App. 2 Cir.1985). Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively at actually known, and preventable if a requisite degree of supervision had been exercised.

In Green v. Orleons Parish School Board, 2000-0106 (La.App. 4th Cir.2/7/01), 780 So.2d 1082, the Court summarized the elements that must be proven in a slip and fall case against a school board:

... the following elements ... must be proven by a plaintiff in a slip and fall case against a school board ...:
1. Cause-in-fact;
2. Breach of the duty to protect against unreasonable risk of injury from dangerous or hazardous objects in the school building and on the grounds;
3. Ease of association between the duty and the injury suffered by the plaintiff;
4. Relationship between risk of fall and reasonableness of the measures the school board took to eliminate the risk; and,
5. Actual or constructive notice.

RULING ON LIABILITY

The Court had the opportunity to watch Mr. Puyear, the teacher, while he testified. The Caddo Parish School Board is fortunate to have someone of his caliber teaching in our schools. He served in the United States Air Force from 1991-1995 and received his degree in Elementary Education in 1999. He began teaching at Forest Hills in September 1999. He obviously is a good teacher and a kind and caring person. Through circumstances beyond his control, he was put in a very difficult position here. Due to overcrowding in our schools, his classroom is a “t-building” far removed from the “inside buildings.” He was required to escort 21 children from this building to the main building in all types of weather. The school had the long-standing policy of requiring the third, 17fourth and fifth graders to take their own pencils with them to the science lab. The younger children at the school apparently do not go to this lab, as this procedure of “changing classes” begins in the third grade. The third graders are on the lower end of the maturity scale for the students who are allowed to “change classes.”

The children, of course, need a bathroom break. Mr. Puyear, being a male, cannot go into the girls’ bathroom. Mr. Puyear had to utilize the outside bathrooms because the fourth graders were using the inside bathroom. Because state law mandates the number of required instructional minutes per day. Mr. Puyear cannot go in search of another inside bathroom. Unfortunately for Mr. Puyear, the school did not have a procedure in place addressing what was to be done with the pencils while the third graders were in the bathroom. The principal testified that she was unaware the pencils were being carried into the bathroom during the trip to the science lab. Although Mr. Puyear developed a plan, the plan was flawed because the monitor, who changed daily, was only a third grader. The children, under the supervision of a classmate, were given an option of what to do with their pencil. The rule was never enforced and was completely ignored. Mr. Puyear acknowledged at trial that he surrendered control over the children in trusting the monitor and students to follow the rules.

The Court fully understands that pencils are necessary tools of learning, and children routinely carry around school supplies. This is an unusual case because of the presence of so many different factors that contributed to this accident. The combination of the following factors results in the finding by the Court that the Caddo Parish School Board was negligent in this case:

1. The damp and wet condition of the title bathroom floor was caused by both the misting rain condition outside and the water from the sinks. These conditions were known to the teacher and the administration, according to the testimony of the teacher and the school administrators.
2. This was a third grade class. This was the first year these elementary school students “changed classes.” They were on the lower end of the maturity level of children being given more responsibility and freedom in elementary school. Mr. Puyear, Mrs. Ebarb and Mr. Killian all acknowledged third graders are playful, have to be constantly reminded of rules, and they ignore the rules.
|s3. The bathroom monitor was a third grader and a classmate who would not be likely to tattle on her classmates or enforce a rule. The monitor changed on a daily basis.
4. There was no set rule as the children were given the option of either handing the pencil to the monitor or putting it on the sink.
5. The school personnel were aware that pencils can cause injuries. The principal testified she warned children not to run with pencils in their hands because they could fall and injure themselves. The assistant principal testified when he was a fifth grade teacher at an elementary school he instructed his students to put their pencils in their pockets to avoid injuries.
6. The pencils could have easily been collected by the teacher or a monitor outside of the bathroom. The teacher testified that not all the students would need to use the restroom and these students would remain outside the restroom. The teacher also remained outside both the boys’ and girls’ bathrooms.

The Court finds that under all of the circumstances that presented themselves on February 14, 2001, as outlined above, the School Board failed to provide adequate supervision and failed to protect against injuries from the unreasonably dangerous condition of the wet and slippery floor. The defendant breached its duties of care to Delana under both the supervision cases and the slip and fall cases. Had Delana not had the pencil in her hand in this slippery and wet bathroom under the supervision of one of her classmates, this particular accident would not have occurred. This accident was easily preventable, as explained above.

The Court also finds that the School Board is not exempt from liability under La. R.S. 9:2798.1. This statute does not immunize schools from tort suits pertaining to the responsibility to supervise children. See, e.g., Gary on Behalf of Gary v. Meche, 626 So.2d 901 (La.App. 3d Cir. 1993).

Although Delana was only a third grader and children are not held to the same degree of care as adults, the Court finds that Delana was also negligent. She was described as a good student and she knew the school rules (1) prohibiting play in the bathroom, and (2) requiring students to exit after washing their hands. She also knew that Mr. Puyear expected them to hand the pencil to the monitor | flor put it on the sink. Had she followed all these rules, this accident would not have happened. The issue is what percentage of fault should be allocated to Delana.

The Court has read and considered all the comparative fault cases cited by the parties. The plaintiff, of course, argues Delana should not be assessed with any fault, or, at most, only 10%. The defense, of course, argues Delana is totally at fault for breaking all the school rules, or, at least, should be assessed with not less than 50% of the fault. Each case is unique and must be decided on its own facts. In this case, Delana was actively involved in conduct that she knew was against the rules. She broke three different rules. Considering her age and the number of infractions she committed, the Court believes that she should be allocated with 25% of the fault under all the circumstances of this case.

QUANTUM

The pictures of Delana with the pencil sticking in her face immediately below her eye are shocking, to say the least. Mr. Puyear, Mrs. Ebarb and Delana’s mother all testified how upset Delana was and that Delana kept asking if she was going to die. Delana and the principal rode in the ambulance to LSU, where Delana’s mother and other family members saw her and became most upset, which further upset Delana. Mrs. Ebarb kept complete control of the situation and calmed both Delana and her family down. Delana had to undergo a CT scan “in a tube” which further upset and frightened her. She underwent anesthesia and a surgical procedure to remove the pencil. The “after pictures” showed only two or three small stitches.

This was an unusual medical situation. Many interns, doctors, medical students and other medical personnel came to look at Delana, and this upset her and her family. Delana testified that all the commotion made her feel like she was from “outer space.” According to Delana’s mother, the pictures taken at LSU have been published in medical journals. After she went home, Delana had nightmares and worried about freak accidents for months. Other students referred to her as “the girl with the pencil in her eye,” which embarrassed her and caused her to re-live the accident. Since the accident occurred on Valentine’s Day, Delana could not participate in Valentine’s Day activities Imfor two years. She did speak with the school counselor several times, which helped her. Although the incident and the immediate aftermath were no doubt very traumatic, the Court notes that Delana returned to school after one week. At trial (4& years post accident), she appeared to the Court to be a normal and happy teenager, and no scars are visible on her face. Under all these circumstances, the Court believes that an award of $25,000.00 for general damages is appropriate.

The Court awards the plaintiff the sum of $6,647.93 for the stipulated medical expenses and $25,000.00 for the general damages. These amounts are to be reduced by 25%, and thus the plaintiff is entitled to $23,735.95, together with legal interest. Costs are assessed 25% to plaintiff and 75% to defendant.

Counsel are requested to prepare and submit a Judgment within fifteen (15) days.

THUS DONE AND SIGNED in Chambers in Shreveport, Caddo Parish, Louisiana, on this 28th day of September, 2005.

/s/ Jeanette G. Garrett JEANETTE G. GARRETT DISTRICT JUDGE

Distribution:

Gordon E. Rountree Rountree, Cox, Guin & Achee Shreveport, Louisiana ATTORNEY FOR PLAINTIFFS

Mr. Tommy J. Johnson Tyler & Johnson, LLC Shreveport, Louisiana ATTORNEY FOR DEFENDANTS

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE, and LOLLEY, JJ.

Rehearing denied.

BROWN, J., would grant rehearing.

      . “Agrior” is sometimes spelled "Angor” in the record.

      . The school board's reliance on Hardy v. Bowie, 1998-2821 (La.9/8/99), 744 So.2d 606, is misplaced. The Hardy court declined to apply statutory immunity statute to the city in a suit arising out of the alleged negligence of the police in preventing a death. See discussion of statutory immunity in Hardy, supra.


author: PEATROSS, J.

text:
    Joseph Lee AMOS, Plaintiff-Appellant v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY and Dr. Rebecca Crouch, Defendants-Appellees.
    No. 41,302-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 4, 2006.

      Christopher T. Lee, for Appellants.
    McLeod Verlander by: David E. Verlan-der, III, Monroe, for Appellees.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

h Plaintiffs seek reversal of the trial court’s ruling granting Defendants’ motion for summary judgment and dismissing Plaintiffs’ claims. For the reasons stated herein, the judgment of the trial court is hereby reversed and the matter remanded for further proceedings.

FACTS

On April 26, 2003, Joseph Lee Amos filed a medical malpractice lawsuit against Dr. Rebecca L. Crouch, a general surgeon practicing in Jackson Parish, Louisiana, and her medical malpractice insurer, Louisiana Medical Mutual Insurance Company (“LAMMICO”). The petition alleges that Mr. Amos began treating with Dr. Crouch on April 12, 1999, when he presented with, among other things, occasional bleeding after bowel movements. According to the petition, Mr. Amos continued to complain of similar symptoms in his subsequent visits to Dr. Crouch through the early part of the year 2000. In the spring of 2000, while under the care of a different doctor, Mr. Amos was diagnosed with colorectal cancer, which required surgery and a permanent colostomy. The petition claims that Dr. Crouch breached the standard of care in failing to recommend and conduct the proper diagnostic testing called for by Mr. Amos’ symptoms, which delayed an accurate diagnosis and treatment of his disease.

Prior to filing the petition, the case was submitted to a medical review panel which rendered the following opinion on February 3, 2003:

There are material issues of fact not requiring expert opinion bearing upon liability for consideration by the court, namely:
(1) In April 1999, when patient presented with history of occasionally bleeding after bowel movement for the previous several months, it is the standard of care for a [ 2general surgeon to have ordered a barium enema with proctoscopy or a complete colonoscopy, especially in light of the fact that Dr. Crouch was unable to fully do a digital rectal exam. This panel notes that there is a dispute between Mr. Amos and Dr. Crouch as to whether she recommended but he declined a colonoscopy. If the patient is found not to have declined a proctoscopy or colonoscopy, then simply having a barium enema to diagnose possible colo-rectal cancer was insufficient. However, if Dr. Crouch is found to have recommended a colonoscopy and/or proc-toscopy, then it is not-her fault that the patient declined same.
(2) On subsequent visits with the patient continuing to have complaints of some rectal bleeding and rectal pain, it is the standard of care to have recommended further evaluation and diagnostic tests. Based upon the affidavits of Mr. Amos and Dr. Crouch, there are material disputes as to whether said tests were recommended and/or declined.

On July 23, 2003, Mr. Amos’ three children, Katrina Cothran, Joel Amos and Cheryl Scott, filed a supplemental and amending petition substituting themselves as plaintiffs for their father who they allege died on May 3, 2003. Mr. Amos died from causes unrelated to the colorectal cancer. Dr. Crouch and LAMMICO filed answers generally denying the allegations of malpractice in Plaintiffs’ original and supplemental and amending petitions. While Defendants acknowledged that Mr. Amos' had been treated by Dr. Crouch, that he had reported the presence of blood following bowel movements and that he was subsequently diagnosed with cancer, they asserted that the proper diagnostic testing was recommended but refused by Mr. Amos.

On December 30, 2004, Dr. Crouch and LAMMICO filed a motion for summary judgment on the basis that no genuine issue of material fact exists as to whether Dr. Crouch recommended the proper diagnostic testing. | aDefendants submitted the medical review panel’s opinion and then argued that Plaintiffs, as a result of Mr. Amos’ death, would be unable to present any affirmative evidence in support of the contention that Dr. Crouch failed to make the appropriate testing recommendations. They also submitted the deposition testimony of Dr.. Crouch and a copy of the medical records relating to her treatment of Mr. Amos.

The medical records reflect that Mr. Amos began treatment with Dr. Crouch on April 12, 1999. During the course of his first visit, Mr. Amos indicated that he had occasional bleeding after bowel movements. Following a digital rectal exam, during which the patient was unable to relax, Dr. Crouch tested matter collected from the examination glove for the presence of blood. When the test came back positive, the records reflect that Dr. Crouch recommended that Mr. Amos undergo a barium enema and that he agreed to same. Dr. Crouch’s notes do not reflect that Mr. Amos was reluctant to undergo the test. Mr. Amos underwent the barium enema on April 15, 1999, and the records reflect that the results were “unremarkable.”

After this initial exam, Mr. Amos returned to see Dr. Crouch on June 7, 1999, September 7, 1999, November 30, 1999, and January 3, 2000. During the June 7, 1999 visit, Dr. Crouch prescribed Proeto-foam HC “per rectum,” but noted that, “if no relief with this needs proctoscopy.” During the November 30, 1999 visit, Dr. Crouch noted that the patient complained of seeing blood when wiping after bowel movements. The chart notes that she discussed with him the need to test for the presence of blood in his |4stool, but that Mr. Amos refused the tests because he was certain the blood seen was not in his stool. Nowhere in the medical records is it recorded that Dr. Crouch recommended to Mr. Amos the need for him to undergo a proctoscopy or colonoscopy and/or that he refused to undergo such a test.

On May 1, 2000, Dr. Crouch made the following entry on Mr. Amos’ medical record:

5/1/00 Patient phoned today about his job as cleaner for the office. He states he has been ill from radiation therapy [and] chemotherapy for rectal tumor. It seems that after he refused any further w/u here for the hematest [and] stools he went to a doctor in Ruston and had some type of scope. The tumor was evidently found then. He refused surgery and has been having chemotherapy and radiation therapy. Informed him that this constitutes change in doctors and termination of the patient/doctor relationship. He insists it does not and he will come back here when the radiation therapy is finished.

Despite the absence of any express indication in Mr. Amos’ medical records to the effect that he was informed of the need to undergo either a proctoscopy or colonosco-py, Dr. Crouch testified in her deposition that she did make these recommendations and that Mr. Amos refused to undergo the tests. Accordingly, Defendants asserted that summary judgment is appropriate because Plaintiffs will be unable to affirmatively prove that Dr. Crouch failed to make the testing recommendation.

In opposing the motion for summary judgment, Plaintiffs submitted the affidavit of Mr. Amos, which was prepared during the panel review process. In the affidavit, Mr. Amos attested to the fact that Dr. Crouch never discussed the possibility that his symptoms could be a sign of cancer, that she never mentioned the word colo-noscopy and that she cancelled all further testing once she received the results of the barium enema. They also |ssubmitted the deposition testimony of one of the review panel members, Dr. William Sartor. In his testimony, Dr. Sartor agreed that the allegation that the proper testing recommendations were made and refused is not reflected in Dr. Crouch’s notes and that the only evidence of same is her independent recollection. Lastly, Defendants submitted the affidavit of Mr. Amos’ daughter, Katrina Cothran, who attested to the close contact she maintained with her father and that he never mentioned that Dr. Crouch had discussed the possibility of cancer with him or recommended additional testing.

Prior to and at the hearing on the motion for summary judgment, Defendants argued that Mr. Amos’ affidavit did not constitute competent summary judgment evidence because an affidavit must set forth facts that would be admissible at trial. Since the affidavit itself would be inadmissible hearsay and Mr. Amos is deceased, Defendants contend that the assertions made in the affidavit would be inadmissible. The motion for summary judgment came for hearing on September 15, 2005. After hearing arguments, the trial court granted the motion for summary judgment. The trial court gave no indication of whether it considered Mr. Amos’ affidavit in rendering its ruling. A final judgment was signed on November 17, 2005. This appeal ensued.

DISCUSSION

On appeal, Plaintiffs argue that the trial court erred in granting summary judgment because Mr. Amos’ affidavit is admissible under the Louisiana Code of Evidence and should have been considered in opposition | fito Defendants’ motion. Since we find that a genuine issue of material fact precluding summary judgment exists regardless of the allegations made in Mr. Amos’ affidavit, we do not address the question posed in the Appellants’ brief.

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La.4/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The supreme court has recognized that a “genuine issue” is a “triable issue,” an issue on which reasonable persons could disagree. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. A fact is material for summary judgment purposes when its existence or nonexistence may be essential to claimant’s cause of action under the applicable theory of recovery. La. C.C.P. art. 966; NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App. 2d Cir.8/21/96), 679 So.2d 477. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor |7of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App. 2d Cir.4/4/01), 785 So.2d 101.

Considering only that evidence which is undisputed, this record reflects that Mr. Amos was treated by Dr. Crouch between April 1999 and January 2000, during which time Mr. Amos repeatedly complained of the presence of blood during his bowel movements. The medical review panel that considered this matter clearly stated that the standard of care in such circumstances called for the treating physician to recommend that the patient undergo a proctoscopy or colonoscopy to eliminate cancer as the potential cause of the bleeding. While Dr. Crouch’s records reflect her recommendation of various tests and the patient’s acquiescence or refusal to undergo same, they do not reflect that she ever recommended a proctoscopy or colo-noscopy. On the other hand, the record contains Dr. Crouch’s deposition wherein she asserts that she did recommend these tests, but that Mr. Amos refused them.

To establish their medical malpractice claim, Plaintiffs must prove the elements thereof by a preponderance of the evidence. Campbell v. Hospital Serv. Dist. No. 1 Caldwell Parish, 37,876 (La. App. 2d Cir.12/10/03), 862 So.2d 338, writ denied, 04-0069 (La.3/19/04), 869 So.2d 852. If they fail to prove any one element by a preponderance of the evidence, the defendant is not liable. Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606. Proof is sufficient to constitute a preponderance of the evidence when the entirety of the evidence, both direct and circumstantial, | Sestablishes the fact or causation sought to be proved is more probable than not. Cay v. State, Dept. of Transp. and Development, 93-0887 (La.1/14/94), 631 So.2d 393.

It is well established that circumstantial evidence can be used to defeat a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. Circumstantial evidence is evidence which, if believed, proves a fact, and from that fact you may logically and reasonably conclude that another fact exists. Use of circumstantial evidence and the deductions and inferences arising therefrom is a common process for establishing liability in negligence cases. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La.1989).

The absence in Mr. Amos’ medical records of any notations indicating that Dr. Crouch recommended he undergo either a proctoscopy or colonoscopy is circumstantial evidence from which the trier of fact could reasonably conclude that Dr. Crouch never made any such recommendations. Regardless of whether one considers the contents of Mr. Amos’ affidavit, we find that the evidence before the trial court established a genuine issue of fact as to whether Dr. Crouch made the appropriate testing recommendation to Mr. Amos under the circumstances. As noted in the medical review panel’s opinion, whether or not she did is a material fact in determining whether the standard of care was breached. In summary, our de novo review of the record reveals that genuine issues of |3fact prohibit summary judgment in favor of Defendants. The trial court’s judgment granting the motion was improper and must be reversed.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Defendants, Dr. Rebecca L. Crouch and the Louisiana Medical Mutual Insurance Company, is reversed. The matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to Defendants in this case.

REVERSED AND REMANDED.


author: THIBODEAUX, C.J.

text:
    STATE of Louisiana v. Mark Anthony DELAFOSSE.
    No. KA2006-798.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 9, 2006.

      John Foster DeRosier, District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Thomas L. Lorenzi, Lorenzi, Sanchez & Palay, Lake Charles, LA, for Appellant, Mark Anthony Delafosse.
    Court composed of ULYSSES GENE THIBODEAUX, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   THIBODEAUX, C.J.

hOn July 13, 2006, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed due to its untimely perfection. In response, defense counsel filed a brief with this court, admitting, under his obligation of candor to the tribunal, that Defendant’s appeal was not timely perfected as far more than thirty days have lapsed since the ruling on Defendant’s Motion to Reconsider Sentence. Defense counsel further concedes that Defendant’s appeal is procedurally barred and subject to dismissal in accordance with the provisions of La.Code Crim.P. art. 914.

Defendant, Mark Anthony Delafosse, was originally charged with first degree murder, in violation of La.R.S. 14:30. However on February 17, 1998, Defendant pled guilty to manslaughter, in violation of La.R.S. 14:31, and armed robbery, in violation of La.R.S. 14:64. On June 5,1998, the trial court sentenced Defendant to forty years at hard labor for the manslaughter conviction and forty years at hard labor without benefit of probation, parole, and suspension of sentence for the armed robbery conviction. The district court ordered the sentences to run consecutively to each other but concurrently with another sentence Defendant was serving as a result of a probation violation. Also, the trial court gave Defendant credit for time served. Defendant filed a Motion to Reconsider Sentence on July 6, 1998, and the district court denied the motion after conducting a hearing on October 26, 1998. Defendant did not file a motion for appeal.

On November 2, 2000, Defendant filed an application seeking post-conviction relief with the district court, and the trial court denied relief on Defendant’s application. In 2003, Defendant submitted supplements to his application for post-conviction relief. The district court granted relief on the supplemented application, vacated Defendant’s guilty plea and sentence, and ordered Defendant to be tried for | j>first degree murder. As a result, the State sought supervisory review of the trial court’s ruling. Finding that the “supplemental” applications for post-conviction relief had been untimely filed, this court reversed the district court’s ruling and reinstated Defendant’s original convictions and sentences. State v. Delafosse, an unpublished opinion bearing docket number 04-763 (La.App. 3 Cir. 8/27/04), writ denied, 04-2392 (La.2/4/05), 893 So.2d 84.

Defendant next filed a notice of his intent to appeal with the trial court on February 16, 2006. In response, the district court granted “appealability” and gave Defendant until April 19, 2006 to lodge his record with this court. Defendant then lodged his appeal record with this court within the time set out by the appeal order. Because Defendant attempted to file his appeal in proper person, this court remanded the matter to the district court for an evidentiary hearing either to determine that Defendant was entitled to counsel for his appeal or so Defendant could waive his right to counsel once he was informed of the dangers and disadvantages of self-representation. State v. Delafosse, an unpublished order bearing docket number 06-559 (La.App. 3 Cir. 4/24/06).

As ordered, the trial court conducted the hearing and appointed Defendant appellate counsel. Defendant then re-lodged his appeal with this court, and this court ordered Defendant to show cause why his appeal should not be dismissed as being untimely perfected. State v. Delafosse, an unpublished order bearing docket number 06-798 (La.App. 3 Cir. 7/13/06). As ordered, Defendant filed a brief with this court on July 12, 2006.

“Under La.Code Crim.P. art. 914, a motion for appeal must be made no later than thirty days after either the rendition of the judgment from which the appeal is taken or the ruling on a motion to reconsider sentence filed pursuant to La.Code Crim.P. art. 881.1.” State v. King, 05-1543 (La.App. 3 Cir. 3/8/06), 924 So.2d 1282. Because Defendant filed his motion for appeal on February 16, 2006, which was well beyond the time provided by La.Code Crim.P. art. 914, his conviction and sentence had already become final pri- or to his motion for appeal. “When a defendant fails to make a motion for appeal within the time provided in Article 914, he loses his right to obtain an appeal by simply filing a motion for appeal in the trial court.” State v. LaBiche, 96-433 (La. App. 3 Cir. 7/31/96), 680 So.2d 77. In such a situation, a defendant can appeal only after he properly files an application for post-conviction relief seeking reinstatement of his right to appeal, and the trial court grants an out-of-time appeal as post-conviction relief. King, 924 So.2d 1282 (citing LaBiche, 680 So.2d 77; State v. Dixon, 00-516 (La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475 So.2d 336 (La.1985)).

Accordingly, Defendant’s appeal is hereby dismissed, and the case is remanded to the trial court for further proceedings. Defendant is to be permitted an opportunity to amend his motion for appeal to comply with the requirements of La.Code Crim.P. arts. 924-930.8. As Defendant’s time for seeking post-conviction relief has also lapsed, Defendant’s application for post-conviction relief must both allege and prove that his application fits within an exception to the two-year time limit set out in La.Code Crim.P. art. 930.8. The State is to be given an opportunity to contest the granting of an out-of-time appeal.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.