author: PETERS, J. PAINTER, J.,

text:
    STATE of Louisiana v. Roland CHAMBERS.
    No. 2005-1517.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2006.
    Rehearing Denied July 26, 2006.

      Richard J. Putnam, III, Assistant District Attorney, Fifteenth Judicial District, Abbeville, LA, for Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Roland Chambers.
    Roland Chambers, Jackson, LA, pro se.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PETERS, J.

hThe defendant, Roland Chambers, was originally charged by grand jury indictment with the offense of second degree murder, a violation of La.R.S. 14:30.1. After trial, a jury returned the responsive verdict of guilty of manslaughter, a violation of La.R.S. 14:31. Thereafter, the trial court sentenced the defendant to serve twenty years at hard labor. After the trial court rejected his motion to reconsider his sentence, the defendant perfected this appeal. In his appeal, the defendant raises two assignments of error through his attorney of record and three pro se assignments of error. For the following reasons, we reverse the defendant’s conviction and enter a judgment of acquittal.

DISCUSSION OF THE RECORD

There is little dispute over the facts giving rise to the defendant’s conviction. The evidence established that on the afternoon of March 31, 2003, the body of Ryan Cassidy was found in a ditch in Erath, Louisiana. A subsequent autopsy revealed that Cassidy’s body contained a long list of recently ingested and/or injected compounds, including marijuana, benzodiaze-pines, diazepam (Valium), nordiazepam, amphetamine, methamphetamine, ecstasy, methylenedioxyamphetamine, cocaine, oxy-codone (OxyContin), and oxymorphone. Additionally, a number of fresh puncture marks in various stages of healing were present on Cassidy’s arms.

The State of Louisiana (state) presented evidence with regard to how Cassidy came to be found in the ditch through the testimony of Nick Choplin, who, like the defendant and a third individual named Derrick Reaux, was initially charged with Cassidy’s murder. Choplin’s undisputed testimony established that, on the day | ^before Cassi-dy’s body was found, Reaux telephoned him and asked for assistance in obtaining a forty or eighty milligram tablet of Oxy-Contin. Choplin and Reaux were friends and had often used OxyContin together before that date. They would do so by crushing a tablet of the medication, melting the crushed substance in a spoon, and injecting it intravenously to acquire an instant “high” from the otherwise time-released pain medication.

At approximately 8:30 p.m. on March 30, 2003, Reaux and Cassidy arrived at Chop-lin’s home. Reaux had not mentioned Cas-sidy in the prior telephone conversation, and, initially, Choplin was uncomfortable in discussing any purchase of an illegal substance in Cassidy’s presence. However, Reaux satisfied Choplin’s concerns, and soon thereafter the three men left Chop-lin’s home in Reaux’s vehicle in an attempt to obtain the OxyContin. Using Reaux’s cellular telephone, Choplin made arrangements with the defendant, from whom he had purchased OxyContin in the past, to purchase one eighty milligram tablet.

The three men drove to a prearranged location where the defendant was waiting. After being provided with $40.00 by Reaux, Choplin then exited the vehicle and gave the money to the defendant in exchange for an eighty milligram tablet of OxyContin. Neither Reaux nor Cassidy exited the vehicle. Choplin then returned to the vehicle and gave the tablet to Reaux. The three men then returned to Choplin’s home, arriving at approximately 9:45 p.m.

Immediately upon arriving at Choplin’s home, Reaux obtained a spoon from the kitchen, and he and Cassidy went into the bathroom. They remained there for approximately ten minutes, and, when they exited the bathroom, Reaux handed IsChoplin the spoon he had taken from the kitchen. Choplin observed that it was burned black on the bottom, a condition which Choplin accepted as evidence that Reaux and Cassidy had cooked the Oxy-Contin tablet for intravenous injection. Reaux and Cassidy immediately left Chop-lin’s house. The subsequent criminal investigation established that Cassidy died in Reaux’s house sometime that night and that Reaux and his girlfriend disposed of the body by dumping it in the ditch.

After completion of the evidentiary stage of the trial, and after being instructed by the trial court concerning the principal charge of second degree murder as well as the possible responsive verdict of manslaughter, the jury returned a verdict finding the defendant guilty of manslaughter. After sentencing, the defendant filed a motion to reconsider his sentence, which the trial court rejected. The defendant then perfected this appeal.

OPINION

Louisiana Revised Statutes 14:30.1(A) provides a number of ways the offense of second degree murder can be committed, and it defines second degree murder as:

[T]he killing of a human being:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
(b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm.
(3) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I or II of the Uniform | Controlled Dangerous Substances Law which is the direct cause of the death of the recipient who ingested or consumed the controlled dangerous substance.
(4) When the offender unlawfully distributes or dispenses a controlled dangerous substance listed in Schedules I or II of the Uniform Controlled Dangerous Substances Law to another who subsequently distributes or dispenses such controlled dangerous substance which is the direct cause of the death of the person who ingested or consumed the controlled dangerous substance.

(Footnote omitted.)

That portion of the manslaughter statute applicable to the facts now before us is La.R.S. 14:31(A)(2)(a), which provides that “[mjanslaughter is ... [a] homicide committed, without any intent to cause death or great bodily harm ... [w]hen the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person....”

The defendant argues in his counsel’s first assignment of error that the evidence presented by the state was insufficient to sustain a verdict of manslaughter. We agree that the facts presented at trial establish only that the defendant was engaged in a felony enumerated in La.R.S. 14:30.1(A)(4), the distribution of oxyco-done. Thus, the state failed to establish that he was engaged in any criminal activity other than that specifically listed in La.R.S. 14:30.1. However, our inquiry does not end with that conclusion.

In further evaluating this assignment of error, we note that the record establishes that the defendant did not object to the jury being instructed as to the | Rresponsive verdict of manslaughter. As stated in State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983):

[I]f the defendant does not enter an objection [to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict] (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.
It would be unfair to permit the defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object. Therefore, at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.

Thus, because the state failed to establish the elements of manslaughter beyond a reasonable doubt, the issue before us is whether the state established the elements of second degree murder beyond a reasonable doubt such that the jury could have returned the “compromise” verdict.

The state’s prosecution of the defendant was based on La.R.S. 14:30.1(A)(4). Thus, the state had to establish beyond a reasonable doubt that, although he had no specific intent to kill Cassidy, the defendant unlawfully distributed OxyContin to Chop-lin, who subsequently distributed that substance to another, and that the OxyContin was the direct cause of Cassidy’s death.

The defendant does not dispute that he distributed the OxyContin to Choplin or that Choplin distributed the substance to Reaux. Instead, he argues that the state failed to establish that the OxyContin he distributed to Choplin was the direct cause of Cassidy’s death. Specifically, he asserts that the state’s evidence is circumstantial IfiWith regard to whether Cassidy ingested and/or injected any portion of the OxyCon-tin he distributed to Choplin or died from that particular substance. He argues that the facts presented do not exclude every reasonable hypothesis of innocence beyond a reasonable doubt as required by La.R.S. 15:438. We agree.

Louisiana Revised Statutes 15:438 provides with regard to circumstantial evidence that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” In addressing the issue of circumstantial evidence, the supreme court stated in State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998):

When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test to be applied when circumstantial evidence forms the basis of a conviction; all evidence, both direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt.

In attempting to establish the OxyCon-tin distributed by the defendant as the direct cause of Cassidy’s death, the state relied on the testimony of two experts, Dr. Edward Barbieri, a forensic toxicologist employed by National Medical Services, a Pennsylvania testing facility, and Dr. Emil M. Laga, a forensic pathologist and toxicologist. Dr. Laga performed the autopsy on Cassidy’s body, and National Medical Services performed certain toxicology screening on blood samples obtained during the autopsy proceedings. However, the expert testimony is conflicting with regard to the effect of Cassidy’s level of OxyContin as well as how that level might have been affected by the other substances present.

17Pr. Barbieri provided the jury with the long list of compounds that Cassidy had recently ingested and/or injected into his body, including specifically, OxyContin. He testified that Cassidy’s blood sample revealed a level of 400 nanograms of oxy-codone (OxyContin) per milliliter of blood (nanog/mL) in Ms system at the time of his death. When asked about the lethal effect of that level, Dr. Barbieri suggested that the finding “could be” be within a lethal range but that the more typical lethal ranges of that substance rise into the thousands of nanog/mL. He did acknowledge that some studies involving individuáis who were not used to using the substance by intravenous injection revealed lethal ranges as low as 500 nanog/mL. He suggested that, while such instances were uncommon, they had been documented as having occurred. However, in those instances, OxyContin was the only substance present in the individual’s system.

According to Dr. Barbieri, the effect a particular substance might have on a specific individual could depend on such noninclusive factors as the individual’s physical frame, body weight, sensitivity, or genetic makeup. However, Dr. Bar-bieri was not asked whether a single eighty milligram tablet of OxyContin could produce a level of 400 nanog/mL in an individual. Although he testified that all of the substances present in Cassidy’s body could have interacted to cause his death, he suggested that the person performing the autopsy would be in a better position to evaluate the effect of the combinations in an individual’s system.

Dr. Laga performed the autopsy at a hospital in Abbeville, Louisiana, on the afternoon of March 31, 2003. Dr. Laga’s autopsy findings added cocaine to the list of ingested and/or injected substances testified to by Dr. Barbieri, as he found that 1 sCassidy had ingested cocaine within twenty-four hours of his death. Dr. Laga disagreed with Dr. Barbieri’s opinion concerning the potential effect of the other substances. He testified that the substances present, other than the OxyContin, had been present long enough to have either ceased to have any effect on his system or were at levels far below lethal or toxic levels. In his opinion, Cassidy died as a result of fluid buildup in the lungs and brain, which he credited to the presence of the OxyContin alone. Dr. Laga also disagreed with Dr. Barbieri’s opinion concerning the effect of a 400 na-nog/mL level of OxyContin. According to Dr. Laga, most people die if their OxyCon-tin level reaches anything between 200 and 1,000 nanog/mL and that, in the case of Cassidy, OxyContin “was the last drug he took and the most killing drug he took.” He specifically testified that an injected eighty milligram tablet would be sufficient to produce a lethal level of OxyContin and would produce a finding of 400 nanog/mL.

In addition to the conflicts raised by the state’s expert evidence with regard to the effect of Cassidy’s OxyContin level, time sequence conflicts and unanswered questions also arose from the state’s other evidence. Choplin’s testimony established that Reaux and Cassidy left his home at approximately 10:00 p.m. on March 30, 2003. According to Choplin, both men “had a pretty intense buzz” when they left but otherwise “they looked the same.” We interpret this to mean that they looked the same as they had when he first saw them that night in that they had initially “looked like they had been up for a while from the get go.” Dr. Laga testified that Cassidy died between 12:00 midnight and 6:00 a.m. on March 31, 2003, or at least two hours | 9after he left Choplin’s home. However, Dr. Laga also testified that, if Cassidy had injected himself with the full eighty milligram tablet, his substance level would have immediately risen to 380 to 570 na-nog/mL and he would have lapsed into a deep coma within five minutes after the injection. He opined that fluid buildup in the lungs and brain would have begun within five to fifteen minutes and that, once this occurred, “you’re never going to come back.” However, according to the doctor, he could still “possibly” have survived in a coma for two hours.

While performing the autopsy, Dr. Laga observed a number of puncture marks on Cassidy’s arms, which he considered consistent with intravenous injection sites. Some were scabbed over, indicating to the doctor that they could have been present for as long as one week. However, eight appeared to be injection sites which were less than twenty-four-hours old. The doctor could not determine how many of the sites were successful injections. According to the doctor, it could have been as little as one or as many as eight. Additionally, Dr. Laga testified that the lethal level could have been reached had Cassidy injected himself with forty milligrams of OxyContin at times in close proximity to each other.

Thus, while the evidence establishes beyond a reasonable doubt that the defendant distributed an eighty milligram tablet of OxyContin to Choplin, that Choplin distributed that substance to Reaux, and that Reaux and Cassidy converted the substance for intravenous use in Choplin’s bathroom, the evidence does not establish what amount of that tablet of OxyContin Cassidy injected and does not exclude the possibility of Cassidy having ingested more OxyContin from a different source following the episode in Choplin’s bathroom.

ImGiven the conflicting expert testimony regarding the effect of the level of Oxy-Contin present in Cassidy, the lack of evidence concerning exactly what occurred in Choplin’s bathroom, the presence of eight recent puncture marks on Cassidy’s arm, and Dr. Laga’s testimony concerning the possibility of Cassidy injecting himself twice within a short period of time, we find that the state has failed to carry its burden of excluding every reasonable hypothesis of innocence as required by La.R.S. 15:438.

Viewing the direct evidence in a light most favorable to the state, a rational juror could believe Dr. Barbieri over Dr. Laga with regard to the effect of OxyCon-tin and the other substances on an individual’s system or could conclude that Cassi-dy shared the eighty milligram tablet with Reaux and later obtained an additional tablet. In either case, such a belief would preclude the state from carrying its burden of proof beyond a reasonable doubt as to every essential element of the crime. Specifically, such findings would preclude the proof of causation. That is to say, reasonable findings with regard to that evidence and permissible inferences did not exclude every reasonable hypothesis of innocence beyond a reasonable doubt as required by La.R.S. 15:438.

DISPOSITION

For the foregoing reasons, we reverse the defendant’s conviction for manslaughter and enter a judgment of acquittal.

REVERSED AND RENDERED.

PAINTER, J., dissents and assigns written reasons.

PAINTER, J.,

dissenting.

LI respectfully dissent from the majority herein. I disagree with the majority’s con-elusion that the evidence adduced at trial does not exclude every reasonable hypothesis of innocence. There is no question but that Choplin bought OxyContin from Chambers on behalf of Cassity and Reaux. Thus, Chambers is a link in the distribution of the drug to Cassidy. Therefore, Chambers is a principal as defined by La. R.S. 14:24. Further, the circumstantial evidence indicates that Cassidy injected the drug soon after it was supplied to him. Edward Barbieri, the forensic toxicologist, deferred to the greater knowledge of the doctor performing the autopsy, Dr. Emile Laga, as to the effect of the various drugs found in Cassidy’s blood. Dr. Laga credited Cassidy’s death to OxyContin. He testified that the amount bought from Chambers was sufficient to produce the amount found in Cassidy’s blood. Taking this evidence, both direct and circumstantial, in the light most favorable to the prosecution, it is sufficient to support the guilty verdict brought by the jury in this case. Accordingly, I would affirm Chambers’ conviction.

      . Although originally charged with second degree murder and distribution of a controlled dangerous substance, Choplin entered into a plea agreement with the state whereby the second degree murder charge was reduced to negligent homicide in exchange for a guilty plea to both charges. The trial court sentenced him to serve five years at hard labor on each count, but suspended the sentences and placed Choplin on five years supervised probation. A condition of that probation was that he testify truthfully with regard to the defendant’s involvement in Cassidy’s death.

      . Article 30 refers to La.R.S. 14:30, the first degree murder statute, and is not applicable to the facts before us.

      . OxyContin contains oxycodone, which is a controlled dangerous substance listed in Schedule II of the Uniform Dangerous Substance Law. See La.R.S. 40:964.

      . Dr. Laga's autopsy findings established that Cassidy was five feet, eleven inches tall at the time of his death and weighed 145 pounds.

      . We also note that the lay testimony on the effect of OxyContin conflicts with Dr. Laga's expert testimony. Choplin testified that, on March 30, 2003, he was deeply involved in using illegal substances and was ingesting ”[g]ive or take, about three hundred sixty milligrams [of OxyContin] per day.”


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Arthur THOMPSON v. CITY OF NEW ORLEANS.
    No. 2005-CA-0947.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 24, 2006.

      Alan B. Tusa, Tusa & Richards, L.L.C., Covington, LA, for Appellant, Arthur Thompson.
    Wayne J. Fontana, Thomas Louis Col-letta, Jr., Courtenay, Hunter & Fontana, L.L.P., New Orleans, LA, for Appellee, City of New Orleans.
    (Court Composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

1 iThis case involves a claim for workers’ compensation benefits. Arthur Thompson is appealing a judgment awarding him supplemental earnings benefits on the grounds that (1) the amount and rate of the supplemental earnings benefits that he was awarded were incorrectly calculated, (2) the benefits were improperly reduced as a result of his alleged failure to cooperate with vocational rehabilitation efforts, and (3) he was entitled to an award for attorney’s fees, penalties, and costs.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Thompson, an employee of the City of New Orleans in the New Orleans Police Department (the “NOPD”), was injured while he was directing traffic at the Louisiana Superdome. Mr. Thompson testified at his deposition that after he attempted to redirect the driver of a vehicle who was entering a restricted area, the driver “floored the vehicle” while Mr. Thompson was “standing directly in front of it.” Mr. Thompson was forced to jump out of the way of the vehicle to avoid being hit. Mr. Thompson further stated that “when I did jump out of the way I felt my back crack, a little pain, and my knee also cracked.” He experienced back pain immediately, and the next morning he noticed that his knee was swollen.

|2Mr. Thompson further testified in his deposition that he had retired from the police department and was working as a security guard for a gated community. He said that the security guards “are gatekeepers, basically.” He stated that he worked one day a week for nine hours, on Fridays, and that he earned $13.31 per hour. He also said that he sometimes worked more than one day a week when other security guards were unable to work or were on vacation.

During his career as a police officer, Mr. Thompson made a number of claims for workers’ compensation benefits as a result of injuries that he received in connection with his job. He was treated for his work related injuries by Robert Edwin Ruel, Jr., M.D., an orthopedic surgeon. At his deposition, Dr. Ruel testified that he had first treated Mr. Thompson in 1981. Dr. Ruel further testified that the injury involved in the instant case occurred in the middle of March 2000. Dr. Ruel said that when he saw Mr. Thompson in early April of that year, he diagnosed Mr. Thompson with a sprained right knee and a sprained lower back. A month later, Dr. Ruel ordered an MRI on Mr. Thompson’s right knee, and Dr. Ruel stated that “I took him out of work at the time of the office visit.” The MRI indicated that the knee had been injured, and it showed degenerative changes in the knee due to arthritis.

In September 2000, Dr. Ruel performed arthroscopic surgery on Mr. Thompson’s right knee to remove a number of pieces of bone that were dislodged due, in part, to the trauma that the knee incurred when it was injured in March of |athat year. After the surgery, Mr. Thompson underwent physical therapy. His knee improved until he reached maximum medical improvement in September 2001, a year after the arthroscopic surgery. Dr. Ruel said that, as of that date, he did not think that Mr. Thompson’s condition would worsen, and he also said that Mr. Thompson’s recovery had reached a plateau. Dr. Ruel testified that in his opinion, as of September 2001, Mr. Thompson could function full time in a job similar to his job as a security guard for a gated community, if there were “restrictions on lifting, prolonged walking, climbing, jumping, running, et cetera.” Dr. Ruel also testified, however, that Mr. Thompson would not be a particularly dependable employee, because he would have to miss work periodically due to his physical problems.

Dr. Ruel stated in his deposition that Mr. Thompson had a ten percent permanent physical disability of his lower right extremity. He also said that Mr. Thompson continued to suffer from problems with his right knee. Mr. Thompson’s right knee “gives way,” and “[gjoing up and down stairs and bending his knee is bothersome.” His “[k]nee would still would [sic] crack with prolonged sitting and raising from a seated position.”

On October 29, 2001, a Partial Consent Judgment was signed in the instant case. The judgment held that Mr. Thompson was entitled to temporary total disability benefits as a result of his injuries in March 2000. The benefits were payable from May 7, 2000, through the date of his retirement from the NOPD in February 2001. The total amount awarded to Mr. Thompson in the judgment was $14,701.72. Additionally, the City was ordered to pay Mr. Thompson a penalty of $1,835.89 to settle his claims that the City had arbitrarily and capriciously failed to pay. All other issues in the case were “left open, including but not limited to, the | ¿calculation of temporary total disability and/or supplemental earnings benefits owed ... for the period April 7, 2001 through the present and continuing.” The City was also ordered to pay Mr. Thompson’s medical bills that were related to his job injury.

The record before us contains a number of vocational rehabilitation reports that were introduced into evidence. The initial rehabilitation report stated that Mr. Thompson’s file was received by Resolution Network, a vocational rehabilitation provider, on September 13, 2001. According to the initial report, a number of telephone calls were made in an unsuccessful attempt to contact Mr. Thompson’s attorney. On November 19, 2001, Rene P. Zeringue, III, a rehabilitation specialist with Resolution, wrote to Mr. Thompson’s attorney to arrange a date for conducting an initial rehabilitation survey. An appointment was scheduled for December 13, 2001, but the appointment had to be can-celled, because Mr. Thompson was hospitalized at that time. In early January 2002, Mr. Zeringue advised Mr. Thompson’s attorney in a letter that he wanted to meet with Mr. Thompson when it became appropriate. At the end of January 2002, and in the middle of February 2002, Mr. Zeringue corresponded further with Mr. Thompson’s attorney, but as of the date of the initial rehabilitation report, March 18, 2002, Mr. Zeringue had not received any response from the attorney.

In a second report, Mr. Zeringue stated that he had met with Mr. Thompson at the end of April 2002. This report was rendered at the beginning of May 2002.

In the middle of June 2002, another report was issued. In the June report, Mr. Zeringue related that vocational interest testing had been administered to Mr. Thompson. According to the June report, after the testing was completed, Mr. Ze-ringue consulted with Mr. Thompson’s attorney and asked to have Mr. |fiThompson accompany him to the job service office so that Mr. Thompson could register for the service. Mr. Thompson’s attorney, however, said that Mr. Thompson was currently employed in a position that paid $13.00 per hour. Therefore, the attorney “did not see the logic in finding Mr. Thomson a new job at this time, as she has no medical documentation that Mr. Thompson can work more than 1 day a week, nor would I be able to find him a position that pays more than $13 an hour.”

During the reporting period covered by Mr. Zeringue’s report rendered in the middle of July 2002, a transferable skills analysis based on Mr. Thompson’s work history was performed. The July report included the results of the analysis, and Mr. Zeringue noted that Dr. Ruel had released Mr. Thompson to work “in the sedentary to light range working an 8 hour work day.”

A report issued by Mr. Zeringue in October 2002, stated that at the beginning of the month, four potential job opportunities were brought to the attention of Mr. Thompson’s attorney. At the beginning of December 2002, Mr. Zeringue issued another report in which he stated that notice of additional job opportunities had been forwarded to Mr. Thompson’s attorney so that Mr. Thompson could apply for the jobs. Mr. Thompson had indicated that he had considered the possible employment opportunities that had been previously recommended to him but none of the jobs were available when he inquired further about them. The report noted that Mr. Thompson’s inquiry had been made over a month after he had been advised of the possible jobs.

In Mr. Zeringue’s January 2003 report and in his February 2003 report, he noted that he had continued to advise Mr. Thompson of possible job opportunities. In his April 2003 report, Mr. Zeringue stated that he had forwarded several job | ^descriptions to Dr. Ruel for his approval. Finally, in his last report, which was issued at the beginning of May 2003, Mr. Ze-ringue reported that he had contacted all of the prospective employers that he had recommended to Mr. Thompson. Only a few of the employers responded to Mr. Zeringue’s inquiries, but none of them indicated that Mr. Thompson had applied for a job. Mr. Zeringue’s May 2003 report stated that Mr. Thompson’s vocational rehabilitation case would be closed.

At the trial in the instant case, the parties stipulated that Mr. Thompson was injured in the course and scope of his employment with the City and that his average weekly wage for the purpose of calculating supplemental earnings benefits was $2,792.00. The parties further stipulated that if Mr. Thompson were to testify at the trial, he would say that he had submitted an application for employment with each of the potential employers whose name was supplied to him by Mr. Zeringue and that he had not received any responses to his applications. Finally, the parties stipulated that Mr. Thompson had been a police officer for the NOPD.

A number of joint exhibits were admitted into evidence at the trial. The exhibits included the depositions of Dr. Ruel and of Mr. Thompson, letters from Mr. Thompson’s employer in connection with Mr. Thompson’s job as a security guard, the vocational rehabilitation reports prepared by Mr. Zeringue, the reports of Mr. Thompson’s earnings that he was required to furnish in connection with his job as a security guard, and Mr. Thompson’s paycheck stubs from that job. The parties stipulated that if Mr. Thompson were to testify, he would testify that the paycheck stubs were the ones that he had received from his employer.

|7A final judgment was rendered approximately five months after the trial. The judgment held that Mr. Thompson was entitled to supplemental earnings benefits of $761.68 per month beginning in April of 2001. The judgment reduced the supplemental earnings benefits that were awarded by fifty percent for the months of April 2001, through April 2002, because the workers’ compensation judge found that Mr. Thompson failed or refused to cooperate with the vocational rehabilitation efforts that were made for his benefit. No reasons for judgment were given.

After the trial both Mr. Thompson and the City filed motions for a new trial. Mr. Thompson’s motion was denied, and he filed a devolutive appeal. The City’s motion for a new trial was granted, but the City withdrew its motion for a new trial and did not file an appeal.

DISCUSSION

Standard of Review

In Dean v. Southmark Construction, 03-1051 (La.7/6/04), 879 So.2d 112, 117, the Louisiana Supreme Court stated that “[i]n worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s [Office of Workers’ Compensation’s] findings of fact is the ‘manifest error-clearly wrong’ standard.” The Supreme Court further stated that “the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety.” Id. Additionally, a court of appeal “may not reverse the findings of fact of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id.

In Fite v. Louisiana Title Co., 02-2607 (La.6/27/03), 852 So.2d 983, 985, the Supreme Court also stated that “[i]t is well settled in Louisiana jurisprudence that the manifest error standard of appellate review applies in compensation actions even when the evidence before the trier of fact consists solely of written reports, records, and depositions.” In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556, also a workers’ compensation case, the Supreme Court said that “[w]here there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong.”

In reviewing questions of law, however, this Court is required to determine whether the lower court’s interpretation of the law is correct. Glass v. Alton Ochsner Medical Found., 02-0412 (La.App. 4 Cir. 11/06/02), 832 So.2d 403, 405. Where a decision of a lower court is based on an erroneous application of law rather than on a valid exercise of discretion, the decision in not entitled to the deference of this Court. See Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-72 (La.1983).

Assignments of Error

Mr. Thompson has raised four assignments of error. In his assignments of error, he contends that the workers’ compensation judge committed manifest error or abused his discretion such that this Court should reverse the judgment rendered by the workers’ compensation judge.

Assignment of Error No. 1: The trial court committed manifest error by penalizing the appellant and reducing his supplemental earnings benefits.

Mr. Thompson asserts that the workers’ compensation judge erred in finding that he refused to cooperate with the vocational rehabilitation counselor. | nTherefore, he further asserts that his supplemental employment benefits should not have been reduced to penalize him for his refusal to cooperate.

La. R.S. 23:1226(A) provides that an employee whose injury is covered by the workers’ compensation laws is entitled to prompt rehabilitation services if the injury precludes the employee from earning wages equal to those earned prior to the injury. La. R.S. 23:1226(B)(3)(a) further provides that the employer “shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training.” La. R.S. 23:1226(B)(3)(c) penalizes an employee who refuses to “accept rehabilitation as deemed necessary by the worker’s [sic] compensation judge” by reducing the weekly compensation benefits otherwise owed to the employee by fifty percent for each week during which rehabilitation is refused. The reduction in benefits also applies to supplemental earnings benefits.

In the instant case the vocational rehabilitation counselor was selected by the City, and the counselor initially contacted Mr. Thompson’s attorney in the middle of November 2001. The workers’ compensation judge, however, applied the penalty established in La. R.S. 23:1226(B)(3)(c) to Mr. Thompson’s benefits from April of 2001, through April of 2002. According to the rehabilitation reports in the record, the rehabilitation counselor did not receive Mr. Thompson’s file until September 13, 2001. Although Mr. Zeringue, Mr. Thompson’s rehabilitation counselor, attempted to contact Mr. Thompson’s attorney during the months of September and October 2001, he did not receive a response from the attorney until he sent the attorney a letter on November 19, 2001. Mr. Thompson’s attorney then responded to Mr. Zeringue and arranged a meeting between Mr. Ze-ringue and Mr. | ¶ (/Thompson for December 13, 2001. Unfortunately, Mr. Thompson was hospitalized and could not meet with Mr. Zeringue then.

Although Mr. Zeringue attempted to reestablish contact with Mr. Thompson’s attorney between January 8, 2002, and March 18, 2002, he was unable to do so. Finally, he was given permission by Mr. Thompson’s attorney to meet with Mr. Thompson on April 30, 2002.

The workers’ compensation judge found that Mr. Thompson failed to participate in the vocational rehabilitation services provided by the City from April 2001, until April 2002. From April 2001, until September 13, 2001, the City had not selected a vocational rehabilitation counselor. Therefore, it was clearly wrong for the workers’ compensation judge to find that Mr. Thompson failed to cooperate with the City’s rehabilitation efforts during that time period. We further find that Mr. Thompson was cooperating with the City’s rehabilitation efforts until December 13, 2001, and his failure to attend the meeting scheduled for that date was clearly excusable, because he was hospitalized. Thus, we find that the workers’ compensation judge erred in reducing the benefits owed to Mr. Thompson from April 1, 2001, through December of that year.

Additionally, there is nothing in the record to suggest why the first meeting between Mr. Zeringue and Mr. Thompson was not held until April 30, 2002. It is, however, well settled that “Louisiana courts should interpret worker’s [sic] compensation laws liberally in order to afford coverage.” Coats v. American Tel. & Tel. Co., 95-2670 (La.10/25/96), 681 So.2d 1243. 1245. Therefore, we must construe the penalty provisions of La. R.S. 23:1226(B)(3)(c) liberally in favor of Mr. Thompson by giving him the benefit of any doubt that the delay in the meeting from December 13, 2001, to April 30, 2002, was not a result of any fault Uon his part. Thus, we find that it was clearly wrong for the workers’ compensation judge to have reduced Mr. Thompson’s benefits during that period.

Mr. Thompson’s benefits were improperly reduced during the period from April 2001, until April 2002. Therefore, this assignment of error has merit.

Assignment of Error No. 2: The trial court abused its discretion in giving any weight to the reports of the City’s vocational rehabilitation counselor.

In this assignment of error, Mr. Thompson argues that the vocational counselor failed to provide him with meaningful vocational rehabilitation counseling. Specifically, he asserts that the jobs recommended to him by Mr. Zeringue were not suitable jobs, because he either could not physically perform the jobs or did not have the necessary experience or education to perform the jobs. The City counters Mr. Thompson’s argument by claiming that the issue of whether proper vocational rehabilitation was given to Mr. Thompson was not asserted in the hearing before the workers’ compensation judge and, therefore, cannot be asserted on appeal.

In Segura v. Frank, 93-1271, 93-1401 (La.1/14/94), 630 So.2d 714, 725, the Louisiana Supreme Court stated that “[t]he general rule is that appellate courts will not consider issues raised for the first time on appeal.” See also Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112, 116. There is nothing in the record before us to indicate that Mr. Thompson raised the issue of the suitability of the jobs recommended to him at the hearing before the workers’ compensation judge insofar as the experience and education that were needed to perform the jobs. The record did, however, contain a description of the jobs that were recommended, and the parties stipulated that if Mr. Thompson were to hatestify, he would testify that he had applied for the jobs but had received no job offers.

Mr. Thompson did testify that the jobs recommended for him were not suitable, because they required him to work more than one day a week. Additionally, Mr. Thompson stated that he was unable to meet the physical requirements of the jobs even though Dr. Ruel had approved some of the jobs. Even so, the workers’ compensation judge reviewed the evidence that was before Mm and, apparently, determined that the jobs were suitable for Mr. Thompson, because the judge used the wages for those jobs as the basis upon which he determined Mr. Thompson’s supplemental employment benefits.

Mr. Thompson did not present any evidence that the jobs recommended by Mr. Zeringue were unsuitable, except for his statements that he was not able to physically perform some of the jobs, and the workers’ compensation judge apparently found the jobs to be suitable. We do not find that the judge’s findings were either manifestly erroneous or clearly wrong. This assignment of error is without merit. Assignment of Error No. S: The trial court committed manifest error in calculating the appellant’s monthly supplemental earnings benefits rate.

La. R.S. 23:1221(3) sets forth the amount of compensation that a worker with a permanent partial disability is entitled to be paid. When an employee suffers an injury that results in the employee’s inability to earn wages equal to at least ninety percent of the wages that the employee earned at the time of the injury, the employee is entitled to supplemental earnings benefits in an amount 11sequal to sixty-six and two thirds percent of the difference between the average monthly wage that the employee was earning at the time of the injury and the average monthly wage the employee is able to earn after the injury. La. R.S. 23:1221(3)(a). The compensation is payable whether or not the employee is employed after the injury in the same or a similar occupation as the one in which the employee was originally engaged and whether or not the employee was particularly suited to the new job on the basis of the employee’s education, training, and experience. Id.

La. R.S. 23:1221(3)(b) further provides that the amount of wages an employee is able to earn after an injury shall not be less than the amounts actually received in earnings. La. R.S. 23:1221(3)(e)(ii), however, states that notwithstanding the provisions of La. R.S. 23:1221(3)(b), if an employee who was injured is not engaged in any employment or is earning wages less than the employee is able to earn, the determination of the wages that the employee is able to earn shall be no less than the amount the employee would have received in any employment the employee was physically able to perform that was (1) offered to the employee by an employer or (2) available to the employee in the employee’s or the original employer’s community or reasonable geographic region.

In the instant case Mr. Zeringue, the rehabilitation counselor, recommended several jobs to Mr. Thompson. Mr. Ze-ringue chose the jobs that he recommended 114based on Mr. Thompson’s interests and transferable skills as determined by the vocational testing that Mr. Zeringue performed. Mr. Zeringue had several of the jobs approved by Dr. Ruel as being positions that Mr. Thompson was physically capable of performing.

It was stipulated that Mr. Thompson would have testified at the trial that he had applied for the jobs recommended to him but that he had received no job offers. The record indicates that Mr. Thompson learned that some of the jobs were no longer available at the time he planned to apply for them. Mr. Zeringue, however, stated in one of his reports that Mr. Thompson did not inquire about those jobs until more than a month after Mr. Ze-ringue recommended them.

To obtain supplemental earnings benefits the employee must prove by a preponderance of the evidence that an injury covered by the workers’ compensation laws resulted in the employee’s inability to earn at least ninety percent of the amount of the employee’s wages prior to the injury. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. In the instant case, however, the City has not challenged the workers’ compensation judge’s finding that Mr. Thompson was not able to earn at least ninety percent of his prior earnings.

Therefore, the only contested issue regarding the supplemental benefits awarded to Mr. Thompson is the amount of the benefits. The workers’ compensation judge calculated the amount of Mr. Thompson’s supplemental benefits based on an average of the wages that were paid by the employers whose jobs were deemed suitable for Mr. Thompson. Mr. Thompson, however, contends that the calculations should not have been based on an average of the wages, and he has urged on appeal that either the amount of the federal minimum hourly wage |1Bor the amount of actual wages he earned as a security guard working one day a week should have been used to calculate his supplemental earnings benefits.

The employer may show the amount an employee is able to earn through the testimony of a vocational rehabilitation expert. Ambrose v. Fluor Constructors, Inc. 537 So.2d 1176, 1181 (La.App. 4th Cir.1988). In the instant case, Mr. Zeringue, a vocational rehabilitation counselor, evaluated Mr. Thompson’s abilities and interests and determined what skills from his job as a police officer could be transferred to other jobs, and Dr. Ruel approved Mr. Thompson for full time sedentary to light work based on Mr. Thompson’s physical condition.

Mr. Zeringue recommended to Mr. Thompson the following job opportunities:

1. Distribution officer, paying $8.00 per hour;

2. Security director, paying $12.00 per hour, depending on experience;

3. Customer service associate, paying $8.50 to $9.50 per hour;

4. Cage cashier, paying $7.50 to $11.65 per hour;

5. Dispatcher, paying $25,000 to $30,000 annually;

6. Claim support staff, paying $7.50 to $9.00 per hour;

7. PBX operator, paying $7.50 per hour;

8. Fire hole watch, paying $7.50 per hour;

9. Front desk agent, paying $8.00 to $9.00 per hour;

10. Sales assistant, paying $9.50 per hour;

11. Merchandiser, paying $17,000 to $18,500 annually;

12. Pastry representative, paying $8.50 to $9.50 per hour;

13. Customer service representative, paying $10.00 per hour; and

14. Patient registration representative, paying $7.50 to $8.50 per hour.

| ^ Additionally, Dr. Ruel specifically approved nine of the jobs as being jobs that Mr. Thompson was physically capable of performing, and he was in the process of reviewing another four when Mr. Zeringue prepared the closure report for Mr. Thompson’s vocational rehabilitation. Finally, the jobs listed above were located in New Orleans or the immediately surrounding area.

There was evidence in the record sufficient to demonstrate that jobs suitable for Mr. Thompson’s physical limitations and his transferable skills existed within the community. Also, there was sufficient evidence in the record of the wages that Mr. Thompson could be expected to earn in those jobs. Furthermore, the record indicates that there were actual positions available for the jobs listed above, although in the case of some of the jobs, the record shows that Mr. Thompson found them to be unavailable when he checked on their availability over a month after they were recommended to him. The parties also stipulated that if Mr. Thompson were to testify, he would testify that he had received no job offers even though he had applied to some of the jobs. Finally, the record demonstrates that at least some of the jobs recommended to Mr. Thompson were actual positions that were available when Mr. Zeringue advised Mr. Thompson of the jobs.

Mr. Thompson, however, contends that the workers’ compensation judge did not correctly calculate the amount of supplemental earnings benefits to which he was entitled. In Dabney v. Boh Brothers Construction Co., 97-1041, 97-2502 (La.3/11/98), 710 So.2d 1106, 1115, this Court stated that “[t]he lowest figure presented by the employer’s evidence of the claimant’s post-injury earning capacity is the appropriate sum with which to reduce his pre-injury wages” for purposes of calculating the amount of supplemental earnings benefits to which the employee is entitled. See also Franklin v. Hotel Le Meridian, 93-1328 (La.App. 4 Cir. 3/15/94), 634 So.2d 64, 65; Holmes v. Int’l Properties, 611 So.2d 773 (La.App. 4th Cir.1992).

In the instant case, the lowest wage figure for the jobs recommended to Mr. Thompson by Mr. Zeringue was $7.50 per hour. The workers’ compensation judge did not use this figure but, apparently, used a composite wage from the jobs rather than the lowest wage. This was legal error on the part of the judge.

The correct way to calculate the supplemental earnings benefits to which Mr. Thompson is entitled is to do the following:

(1) First, calculate ninety percent of Mr. Thompson’s earnings prior to his accident. The parties stipulated that he earned $2,790.00 per month before the accident. Ninety percent of $2,790.00 is $2,512.80. If Mr. Thompson cannot earn at least $2,512.80 per month after his accident, under La. R.S. 23:1221(3), he is entitled to supplemental earnings benefits. None of the jobs recommended to Mr. Thompson by Mr. Zeringue would have paid as much as $2,512.80 per month.

(2) Second, calculate the amount that Mr. Thompson can earn after his accident. The lowest hourly wage for the jobs that were identified as suitable for Mr. Thompson by Mr. Zeringue was $7.50 per hour. Based on a forty-hour workweek, Mr. Thompson could earn $1,300 per month.

(3) Third, determine whether Mr. Thompson earned more at his job as a security guard than he could have earned at the lowest wage for the jobs that were identified as being suitable for him after his accident. Mr. Thompson earned |,s$13.31 per hour one day a week, which amounts to a monthly salary of $461.41, based on an eight-hour day, or $519.09, based on a nine-hour day. Because the jobs that were identified as suitable for Mr. Thompson command at the minimum a monthly salary of $1,300 per month, this amount should have been used as the monthly salary upon which Mr. Thompson’s supplemental earnings benefits were calculated.

4. Fourth, subtract the $1,300 monthly wage that Mr. Thompson could have earned after his accident from the $2,792.00 monthly wage that he earned prior to his accident, and multiply the difference by sixty six and two thirds percent to determine his monthly supplemental earnings benefit. That amount is $994.67.

We find that the workers’ compensation judge committed legal error in calculating the amount of supplemental earnings benefits to which Mr. Thompson is entitled. The monthly supplemental earnings benefit that the City owes to Mr. Thompson is $994.67.

Mr. Thompson is correct that the workers’ compensation judge did not properly calculate his supplemental earnings benefit. This assignment of error has merit, and Mr. Thompson is entitled to receive monthly supplemental earnings benefits in the amount of $994.67, rather than $761.68, as calculated by the workers’ compensation judge.

Assignment of Error No. ⅛: The trial court erred in failing to award penalties, costs, and attorneys’ fees to the appellant.

Mr. Thompson contends that he should have been awarded attorneys’ fees, costs, and penalties in connection with his workers’ compensation claim, because the City has not paid any benefits to him since the consent judgment ordering that the City pay certain benefits, together with attorneys’ fees, interest, and penalties, hgwas signed in October 2001. The consent judgment stated that all issues in the case that were not addressed in the consent judgment “are left open, including but not limited to, calculation of temporary total disability and/or supplemental earnings benefits owed by the defendant/employer to the claimant Arthur Thompson for the period April 7, 2001 through the present and continuing.”

La. R.S. 23:1201(1) provides that an employer or a workers’ compensation insurer that discontinues the payment of claims that are due under the workers’ compensation laws shall be subject to the payment of a penalty and reasonable attorneys’ fees, if the discontinuance is found to be “arbitrary, capricious, or without probable cause.” La. R.S. 23:1201(1) was enacted in 2003, to replace La. R.S. 23:1201.2, which was in effect at the time of Mr. Thompson’s injury. La. R.S. 23:1201.2, which was repealed in 2003, provided that an employer or insurer that discontinued payment of workers’ compensation claims was subject to the payment of attorney fees for the prosecution and collection of the claims, if the discontinuance was found to be arbitrary, capricious, or without probable cause.

In Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, 1188-89, the Louisiana Supreme Court stated:

The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact. Factual findings are subject to the manifest error or clearly wrong standard of review.

In Frith v. Riverwood, 04-1086 (La.1/19/05), 892 So.2d 7, 15, the Supreme Court stated that “[t]he crucial issue for determining whether an employer’s actions are arbitrary and capricious is whether the employer can articulate an objective reason for discontinuing benefits at the time it took the action.”

12nln Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46, the Supreme Court also stated that “[ajwards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers.” The Supreme Court further stated that “[ajlthough the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.” Id. Finally, in Williams, the Supreme Court defined arbitrary and capricious behavior in discontinuing workers’ compensation benefits as behavior consisting of willful and unreasoning action, without consideration and regard for facts and circumstances, or behavior based on seemingly unfounded motivation. Id.

The Louisiana Supreme Court has also considered the circumstances under which an appellate court should reverse the decision of a workers’ compensation judge denying penalties and attorneys’ fees. In J.E. Merit Constructors, Inc. v. Hickman, 00-0943 (La.1/17/01), 776 So.2d 435, 438, the Supreme Court found that an employer’s actions in terminating an employee’s supplemental earnings benefits did not rise to the level of being arbitrary and capricious even if the actions were legally incorrect. The Supreme Court stated that “[i]t would very rarely be appropriate for an appellate court to award attorney’s fees based on employer actions which the trier of fact previously found did not rise to the level of being arbitrary and capricious (and in fact found to be meritorious.)” Id. (emphasis added); see also Willis v. Alpha Care Home Health, 01-0638 (La.6/15/01), 789 So.2d 567, 568, where the Supreme Court reiterated its position in the Hickman case.

I^Based on the foregoing discussion, we do not find that the instant case is the very rare case in which it would be appropriate for this Court to award attorneys’ fees or penalties after the workers’ compensation judge determined that they should not be awarded. Although the workers’ compensation judge found in favor of Mr. Thompson on the issue of his entitlement to supplemental earnings benefits, there is sufficient evidence in the record to support the judge’s denial of attorneys’ fees and penalties on the basis that the City had a reasonable basis for contesting Mr. Thompson’s claim for benefits.

There was evidence that the wages reported by Mr. Thompson in connection with his jobs as a security guard were not completely accurate, and the language in the consent judgment in this litigation could have been interpreted by the City to mean that it was not required to continue paying additional benefits to Mr. Thompson until a determination of Mr. Thompson’s eligibility for, and the amount of, supplemental earnings benefits had been made. Therefore, we do not find the workers’ compensation judge’s decision on the issue of attorneys’ fees and penalties to have been clearly wrong or manifestly erroneous.

Mr. Thompson was not entitled to an award of attorney’s fees, penalties, costs, or expenses. Thus, this assignment of error is without merit.

CONCLUSION

The judgment of the workers’ compensation judge is amended to provide for supplemental earnings benefits in the amount of $994.67 per month. The judgment is further amended to reverse the fifty percent reduction in the supplemental | .^earnings benefits owed from April 2000, through April 2001. In all other respects, the judgment of the workers’ compensation judge is affirmed.

JUDGMENT AMENDED IN PART AND AFFIRMED AS AMENDED.

      . MRI, an acronym for magnetic resonance imaging, refers to a technique used to create images of organs of the body and other living tissue.

      . Arthroscopic surgery is a procedure that is used to visualize, diagnose, and treat joint problems with an arthroscope, a small fiber optic camera. Using an arthroscope to perform the surgery eliminates the need to open the joint with a large incision.

      . Mr. Thompson was required by La.R.S. 23:1221(3)(f) to report his monthly earnings to his employer. There were some discrepancies between the amounts he reported and the amounts shown on his paycheck stubs.

      . Dr. Ruel found, however, that Mr. Thompson was able to work a normal workweek in a light or sedentary job.

      . The workers’ compensation laws establish a method to be used to determine what an employee is deemed to be able to earn. If an employee actually earns more than he is deemed to be able to earn under the workers' compensation laws, the amount of the employee’s actual earnings is used to calculate any supplemental earnings benefits to which the employee is entitled.

      . We note that in its brief, the City cites Daigle v. Sherwin-Williams Co,, 545 So.2d 1005 (La.1989), for the proposition that the average, rather than the lowest, wage paid by jobs identified during the vocational rehabilitation process as being suitable for an employee should be used in calculating the employee’s supplemental earnings benefit. We do not read Daigle to hold that the average, rather than the lowest, wage is required to be used in all cases.


text:
    STATE of Louisiana v. Corey SMITH.
    No. 2005-KA-1120.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 24, 2006.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    (Court Composed of Judge JAMES F. MCKAY, III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

|, The State of Louisiana appeals from a trial court judgment quashing the bill of information filed against the defendant, Corey Smith. We reverse.

STATEMENT OF THE CASE

On July 15, 2004, the defendant was charged with one count of possession of cocaine, a violation of La. R.S. 40:967(C). Trial commenced on September 22, 2004, but ended in a mistrial when the jury was unable to reach a verdict. On October 21, 2004, the new trial date, the State orally moved for a continuance when one of its witnesses failed to appear. After the trial court denied the continuance, the State entered a nolle prosequi. Several months later, on January 12, 2005, the State reinstituted the prosecution under case number 455-214, the instant matter. The defendant pled not guilty to the new bill of information. On March 18, 2005, the defendant filed a written motion to quash the bill of information, arguing that his constitutional right to a speedy trial had been denied. The trial court granted the defendant’s motion, and the State now appeals.

STATEMENT OF THE FACTS

The facts of the defendant’s alleged offense are contained in the narrative of the police report in the record. According to the report, at approximately 1:30 l?a.m., two officers on routine patrol in the 2000 block of Martin Luther King, Jr. Blvd., an area known for narcotics activity, saw two men slumped over the rear of a vehicle. The officers decided to investigate. During their interview with the subjects, one of whom was the defendant and the other Thaddeus Baxter, the officers noted that both men had slurred speech, dilated pupils, and could not stand up properly. Deeming the men a danger to themselves, the officers arrested both of them for the municipal offense of drug incapacitation. 17,389 M.C.S. § 54-405. In a search incidental to the arrest, the officers found cocaine in the defendant’s pocket. They also seized $598.00 in currency from the defendant.

DISCUSSION

Although the trial judge gave no reasons at the time he ruled, he later issued a per curiam, explaining that he granted the motion to quash because the State earlier had entered a nolle prosequi after he denied its motion to continue for failure to conform with the requirements of La. C.Cr.P. art. 707. Article 707 provides that a motion for a continuance must be in writing, must specifically allege the grounds upon which it is based, and must be filed at least seven days prior to the commencement of trial. The State argues that the trial court abused his discretion by quashing the bill of information as a sanction for its failure to comply with the requirements of La.C.Cr.P. art. 707. The State does not dispute that it orally moved for a continuance on October 21, 2004, because one of its witnesses was not present, and when the motion was denied, that it nolle prosequied the case. The State argues, however, that its failure to comply with La.C.Cr.P. art. 707 was unavoidable due to the surprise non-appearance of its witness, and thus it did not intentionally circumvent the rules of procedure as suggested by the trial court in his \%per cu-riam. It also suggests that the trial court’s remedy for its failure to comply with La.C.Cr.P. art. 707 was the action taken at the time, ie. denying the continuance, and not quashing the bill of information.

La.C.Cr.P. art. 532, relative to the general grounds for a motion to quash, provides:

A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9)The general venire or the petit jury venire was improperly drawn, selected, or constituted.

Furthermore, La.C.Cr.P. art. 534, relative to special grounds for a motion to quash information, provides:

A motion to quash an information may also be based on one or more of the following grounds:
(1) The information was not signed by the district attorney; or was not properly filed.
14(2) The offense is not one for which prosecution can be instituted by an information.

The defendant’s written motion to quash does not assert any ground enumerated in La.C.Cr.P. art. 532 or art. 534 as a basis for quashing the bill of information against him, and the Code of Criminal Procedure does not provide for quashing a bill of information for the failure to comply with the mandates of La.C.Cr.P. art. 707. Although the trial judge may have been frustrated by the State’s failure to have its witness appear for trial, he had no valid basis to quash the bill of information in this case, where the defendant’s constitutional right to a speedy trial was not violated. Moreover, the State has plenary authority pursuant to La.C.Cr.P. art. 576 to dismiss a charge and then reinstitute prosecution in any case, such as this one, where doing so does not circumvent the statutory time limits for commencing trial under La.C.Cr.P. art. 578. Thus, considering the circumstances of this case, the trial court abused his discretion in quashing the bill of information.

CONCLUSION

Accordingly, the judgment of the trial court granting the defendant’s motion to quash the bill of information is reversed. The case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . La.C.Cr. P. art. 578 provides that no felony trial, except in a capital case, shall commence after two years from the date of institution of the prosecution. The two-year time limit in this case was not close to expiring.


author: CANNIZZARO, Judge.

text:
    NORWEST BANK v. Junius C. WALKER, and Eddie M. Walker (a/k/a Eddie Mae Baker) and the United States of America, Internal Revenue Service.
    No. 2005-CA-1068.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 24, 2006.
    Stacy C. Wheat, Jane Faia Mentz, Shapiro & Mentz, L.L.P., Metairie, LA, for Plaintiff/Appellee, Norwest Bank.

      John McKnight, Katy, TX, In Proper Person and for Defendant/Appellant, Gert Town Enterprise Economic Redevelopement, Inc.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.)
   CANNIZZARO, Judge.

11First National Bank of Chicago (“First of Chicago”) foreclosed on a mortgage affecting real estate owned in part by Gert Town Enterprises Economic Redevelopment, Inc. (“Gert Town”). An in rem judgment in favor of First of Chicago was rendered in the foreclosure suit, and Gert Town is appealing that judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Norwest Bank initially filed suit on a promissory note made by Junius C. Walker and Eddie M. Walker, also known as Eddie Mae Baker, that was originally payable to New Orleans Federal Savings and Loan Association but was subsequently transferred to Norwest. Payments on the note were in arrears, and Norwest sued to enforce a mortgage that secured the payment of the note. The mortgage covered property in New Orleans located at 3413-15 Audubon Court, 3409-11 Audubon Court, and 3432-34-34½ Bloomingdale Court.

12Because the whereabouts of Mr. and Mrs. Walker were unknown, an attorney was appointed by the trial court judge to represent them in the suit by Norwest. After the suit was filed by Norwest, First of Chicago was substituted as the plaintiff in the suit, and the United States Internal Revenue Service was added as a defendant. First of Chicago was substituted as the plaintiff, because it had acquired the note securing the mortgage. The Internal Revenue Service was added as a defendant, because it had filed tax liens against the mortgaged property. A consent judgment, however, was subsequently rendered that provided for the discharge of the tax liens against the mortgaged property, so that it could be sold after foreclosure free of the liens.

An in rem judgment recognizing the mortgage on the mortgaged property was granted in favor of First of Chicago and against Mr. and Mrs. Walker. Because the judgment was in rem, it affected only the mortgaged property and not Mr. and Mrs. Walker personally, but First of Chicago reserved its rights to sue them personally.

The mortgaged property was seized by the Orleans Parish sheriff and sold at public auction. First of Chicago was the highest bidder at the auction, and the mortgaged property was transferred to First of Chicago by a sheriffs deed.

After the mortgaged property was purchased by First of Chicago, First of Chicago moved to rescind the sale, because at the time of the sale, Gert Town and others owned an interest in the mortgaged property and had not been made parties to the foreclosure proceeding. The trial court granted the motion to rescind the sale and also ordered that all mortgages and other encumbrances that had been inscribed against the mortgaged property at the time of the sale to First of Chicago be reinstated and reinscribed in the public records.

|3After the original sale to First of Chicago was rescinded, First of Chicago filed a supplemental and amending petition for the enforcement of the mortgage. Tarni-sia Eyette Walker and Gert Town were added as additional defendants in the proceeding, and the unopened succession of Mr. Walker, who was deceased, was substituted for Mr. Walker as a defendant. The supplemental and amending petition alleged that Mrs. Walker was deceased and that a judgment of possession in her succession had been rendered placing Tar-nisia Walker in possession of Mrs. Walker’s undivided one-half community interest in the mortgaged property. Additionally, the supplemental and amending petition alleged that prior to his death, Mr. Walker donated to Gert Town his undivided one-half interest in the mortgaged property.

Gert Town answered the supplemental and amending petition and denied all of its allegations except the allegations pertaining to the identity of Mr. and Mrs. Walker and to the donation of Mr. Walker’s interest in the mortgaged property to Gert Town. Because the whereabouts of Tarni-sia Walker were unknown, an attorney was appointed by the trial court to represent her in the foreclosure proceeding.

First of Chicago then filed a motion for summary judgment. In connection with the motion for summary judgment, First of Chicago presented an affidavit to evidence the amount of the debt on the note that was secured by the mortgage as well as evidence of the mortgage itself, which contained a confession of judgment [4by the mortgagors. A certificate of advertisement in the Times Picayune newspaper was submitted to the trial court as evidence that a search for the note, which had been lost, had been conducted.

A judgment was entered on the motion for summary judgment. An in rem judgment, which recognized the mortgage by Mr. and Mrs. Walker, was rendered in favor of First of Chicago and against the unopened succession of Mr. Walker, Tarni-sia Walker, and Gert Town in the amount due on the note secured by the mortgage plus interest, reasonable attorneys’ fees, and all other amounts permitted by the terms of the mortgage. First of Chicago’s rights to sue any debtors on the note were preserved, and the judgment affected the mortgaged properties only. Gert Town is now appealing the judgment.

DISCUSSION

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 231.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the |ssummary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted.

Assignments of Error

Assignment of Error No. 1: The trial con/rt committed error in granting the in rem summary judgment in favor of First of Chicago in the absence of an original promissory note and in the absence of a certified copy of a notarial act of transfer of the note, the mortgage securing the note, and the assignment of leases and rents.

Foreclosures on immovable property in Louisiana can be brought by an ordinary proceeding or by an executory proceeding. See Hibernia Bank & Trust Co. v. LaCoste, 190 La. 162, 182 So.2d 314 (1938). La. C.C.P. art. 2631 provides that “[ejxecu-tory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment....” In a foreclosure by executory process, much of the evidence must be by authentic act. See La. C.C.P. arts. 2636-37.

In a foreclosure proceeding by ordinary process, the general rules applicable to ordinary lawsuits are followed. In the instant case, which is a foreclosure by ordinary process, the promissory note that is secured by the mortgage is not [¿required to be introduced into evidence if the requirements of La. R.S. 13:3741 are met. That statute provides in relevant part:

In every case where a lost instrument is made the foundation of a suit it must appear that the loss has been advertised within a reasonable time in a public newspaper and proper means taken to recover the possession of the instrument.

In the instant case, the record contains a certificate of publication by the accounts receivable manager of the Times-Picayune Publishing Corporation stating that an advertisement-reading as follows was published in The Times-Picayune newspaper:

Anyone knowing the whereabouts of one certain mortgage noted [sic] dated May 28, 1986, payable to the order of New Orleans Federal Savings Loan Association, in the sum of $28,000 dollars, signed by Junius C. Walker and Eddie M. Walker, [sic] Please contact Jane Faia Mentz, Attorney at Law, (504) 831-7726.

This certificate of publication, together with an affidavit executed by the assistant secretary of Alliance Mortgage Company, the mortgage servicing agent for First of Chicago, stating that she had personal knowledge that First of Chicago was the last holder of the note but that the note was lost or misplaced by First of Chicago, was introduced into evidence in connection with the motion for summary judgment in this case. Because the certification of publication and the affidavit were uncon-tradicted, they were sufficient to prove the existence of the lost mortgage note.

Gert Town has also asserted that it was error for the trial court to permit foreclosure on the mortgaged property, because there were no notarial acts of transfer showing the transfers pursuant to which First of Chicago ultimately obtained ownership of the note secured by the mortgage. In a foreclosure by 17ordinary proceedings, there is no requirement that evidence of the transfer of the note secured by the mortgage be by authentic act. In the instant case, the ownership of the mortgage note was evidenced by the affidavit of the assistant secretary of the mortgage-servicing agent for First of Chicago.

The existence of the original note and its chain of title were properly proven in the instant case. This assignment of error is without merit.

Assignment of Error No. 2: The trial court committed error by “applying an Act of Sale Mortgage rules” to render an in rem judgment.

In this assignment of error, we assume that Gert Town is asserting that there are different rules that apply to the foreclosure of a mortgage securing a loan that was used to purchase the mortgaged property as opposed to a loan, such as an equity loan, that was not used to purchase the mortgaged property, this assignment is without merit. The same methods of foreclosure are applicable to both purchase money mortgages and other types of mortgages that affect immovable property.

We note that Rule 1-3 of the Uniform Rules — Courts of Appeal provides that Louisiana courts of appeal “will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” Additionally, Rule 2-12.4 of the Uniform Rules — Courts of Appeal requires that all specifications or assignments of error must be briefed. Further, Rule 2-12.4 states that “[t]he court may consider as abandoned any specification or assignment of error which has not been briefed.” This assignment of error has not been specifically briefed. Therefore, we do not consider it.

| ¡Assignment of Error No. 3: The trial court committed error in granting the in rem judgment without a certified history of payment of the account, and “a proper transfer of the balance was not performed on the account in question using the Uniform Commercial Code.”

Gert Town has not cited the provisions of the Uniform Commercial Code upon which this assignment of error is based. Thus, this aspect of the assignment of error has not been briefed, and under Rule 2-12.4 of the Uniform Rules — Courts of Appeal, we are not obligated to consider it.

To the extent that this assignment of error asserts that a certified history of the account was required to be introduced into evidence before the trial court could render judgment in this case, we find that this assignment of error is also without merit. The affidavit executed by the assistant secretary of Alliance Mortgage Company, the mortgage servicing agent for First of Chicago, contained the amount due on the note secured by the mortgage sought to be foreclosed, and no contradictory evidence of the amount due on the note was presented in connection with the motion for summary judgment. Therefore, the amount contained in the affidavit was satisfactory evidence of the amount owed on the note. Additionally, we know of no legal requirement that a certified history of the payments on a mortgage note be presented in an ordinary foreclosure proceeding.

Assignment of Error No. k: The trial court committed error in accepting First National Bank of Chicago as a substitute under La. C.C.P. arts 801-807, “because there must be a legal transference of the subject matter of the note itself.’’

Articles 801 through 807 of the Louisiana Code of Civil Procedure refer to the rules regarding the procedure for substituting a new party in a lawsuit when, among other things, the original litigant has died. These articles do not relate to the instant case, and the relationship was not briefed by Gert Town. We are, | fltherefore, unable to consider this assignment of error. Rule 2-12.4 of the Uniform Rules — Courts of Appeal. Thus, this assignment of error is -without merit.

Legal Authorities Cited by Gert Town

Gert Town has cited four cases in its brief in support of its position. We note, however, that all of these cases involved foreclosures by executory process, not foreclosure by ordinary proceedings, which is what is involved in the instant case. Therefore, these cases are not applicable in the instant ease.

First of Chicago’s Burden of Proof

First of Chicago moved for summary judgment in the instant case and bore the burden of proof on the motion for summary judgment. The pleadings and affidavits in the record prove the essential elements required to be proved by First of Chicago. Therefore, First of Chicago met its initial burden of proof. To defeat the motion for summary judgment filed by First of Chicago, Gert Town was required to oppose the motion for summary judgment by showing that a genuine issue of material fact existed. To show this, Gert Town could have presented to the trial court opposing affidavits, depositions, or answers to interrogatories, but it did not do so. Therefore, no genuine issue of material fact was raised, and First of Chicago was entitled to summary judgment.

^CONCLUSION

There is no merit to the assignments of error raised by Gert Town. The judgment of the trial court is affirmed.

AFFIRMED.

      . An in rem judgment operates directly against property and affects all parties' interest in the property. Black's Law Dictionary 860 (8th ed.2004). In contrast, a personal judgment imposes personal liability on a defendant and may be satisfied from any of the defendant's property not exempt from seizure.

      . Gert Town has not raised the issue of whether the unopened succession was a proper party in this case, and we have not considered it.

      . La. C.C.P. art. 2632 provides that "[a]n act evidencing a mortgage or privilege imports a confession of judgment when the obligor therein acknowledges the obligation secured thereby, whether then existing or to arise thereafter, and confesses judgment thereon if the obligation is not paid at maturity.”

      . La. Civil Code art. 1833(A) provides that an authentic act is “a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.”

      . La. C.C.P. arts. 2635-37 set forth the requirements regarding the use of authentic evidence in foreclosure proceedings in which executory process is used.

      . Gert Town cited the following cases in its brief: Bank of Louisiana v. Yolo Corp., 430 So.2d 756 (La.App. 5th Cir.1983); Fabacher v. Hammond Dairy Co., 389 So.2d 87 (La.App. 4th Cir.1980); Sternberg v. Mason, 339 So.2d 373 (La.App. 1st Cir.1976); and Scarborough v. Duke, 251 So.2d 58 (La.App. 3rd Cir.1971).


author: PAINTER, Judge.

text:
    DAVIS GULF COAST, INC. v. ANDERSON EXPLORATION CO., INC., Three Sisters Trust and Austral Oil & Exploration, Inc.
    No. 06-180.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Rehearing Denied July 26, 2006.

      Robert L. Cabes, S. Joseph Dupuis, Jr., Matthew A. Lynch, Lafayette, LA, for Defendant-Appellant Davis Gulf Coast, Inc.
    Steven G. Durio, Robert L. Broussard, Lafayette, LA, for Plaintiff-Appellee Anderson Exploration Co., Inc., Interve-nor-Appellee Ragin Rentals, Inc.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hDavis Gulf Coast, Inc. (“Davis”) appeals the trial court’s judgment declaring Anderson Exploration Co., Inc. (“Anderson”) to be the owner of a 25% working interest and a 19½% interest in certain mineral leases as of May 15, 2001. Arguing in the alternative, Davis appeals the trial court’s choice of a penalty provision as a result of Anderson default under its Joint Operating Agreement with Davis. We reverse the trial court and render judgment.

FACTS

The parties stipulated to certain facts, which we summarize as follows. On March 1, 2001, Davis, Anderson, Three Sisters Trust (“Three Sisters”), and Austral Oil & Exploration, Inc. (“Austral”) agreed to participate in the benefits to be derived from development of certain oil, gas, and mineral leases. They executed a Participation Agreement by which Davis, then owner of the entire working interest in certain mineral leases in the Shuteston Field in St. Landry Parish, Louisiana, agreed to transfer a 25% working interest in the leases each to Anderson and to Three Sisters. Davis was to receive $75,000.00 in consideration from Anderson and Three Sisters. Additionally, Anderson and Three Sisters entered a turnkey drilling agreement with Davis. Under the terms of that agreement, Anderson and Three Sisters agreed to fix a firm estimated cost for drilling a test well. Davis would pay 50% of that estimated cost (which, the parties agree, was $499,313.50). Anderson and Three Sisters were to bear the remainder of the costs, through delivery of the log of the well.

On May 1, 2002, Ragin Rentals, LLC (“Ragin”) bought a 5% working interest and a 3.85% net revenue interest from Anderson and Three Sisters. For that interest, 1 .¿Ragin paid $62,952.00. Of that amount, $7,500.00 represented lease costs. The remainder represented the turnkey price for Ragin’s interest. Anderson and Three Sisters also sold interests to others who are not parties to this suit.

Davis paid its costs under the turnkey agreement into an escrow account at Cameron State Bank. Three Sisters and Anderson paid the $75,000.00 required of them by the Participation Agreement in the form of a credit against Davis’s payment of costs under the turnkey agreement. Davis never delivered the assignments of a 25% working interest in the leases to either Anderson or Three Sisters.

In the Participation Agreement, Austral was named operator with no other interest in the well. Austral signed contracts and/or entered into agreements of other types with service providers and was later replaced as operator by Anderson.

Operations on the test well (the Grace K. Nunez # 1 Well) began on May 3, 2001 and drilling ended on June 30, 2001. On July 2, 2001, Davis authorized Cameron State Bank to release sums from the escrow account to Anderson and Three Sisters. After drilling ended, and after receiving the drilling log, Davis elected to participate in completion of the well. Anderson, by then the operator, billed Davis for half of the completion costs of $181,768.98. Davis did not pay. Davis mortgaged its 25% interest in the leases, i.e. 25% of the Grace K Nunez # 1 Well. Several service providers filed liens against the well totaling $678,354.80 as of April 25, 2002. On May 10, 2002, Austral, then operator of the well, put Davis in default and provided a deadline for cure or imposition of the penalty provided in the Joint Operating Agreement.

On May 15, 2002, Davis made demand on Anderson, Three Sisters, and Austral for surrender of operating rights to the well, for an accounting of Davis’ funds, and |sfor an assignment of all rights under a gas purchase agreement entered with LIG Chemical Co. Davis applied for a public hearing to remove Anderson as operator of the well and to have itself designated as operator. On June 20, 2002, Davis filed a Petition for Declaratory Judgment and Damages naming Anderson, Three Sisters, and Austral as Defendants. Davis prayed for a judgment declaring that neither Anderson nor Three Sisters was entitled to an interest in the mineral leases or test well or, alternatively, that they were defaulting parties under the Joint Operating Agreement and therefore subject to the penalty provisions. Davis further pleaded that neither Anderson nor Austral had any right to operate the well, had no interest in the mineral leases and that Anderson, Three Sisters, and Austral were all defaulting parties such that Davis was entitled to take over as operator. Davis further prayed for judgment against Anderson and Three Sisters for the amount it escrowed, for damages suffered as a result of their breaches, for an accounting of all costs incurred and revenues derived in connection with the Nunez Well, and for an order to indemnify Davis from liens and other claims for goods and services supplied in connection with the drilling of the well. Ragin intervened in the suit demanding an assignment from Davis and/or Anderson. After negotiations, Davis was named operator of the Grace K. Nunez # 1 Well.

The parties agree that letters were exchanged in July 2002 in an attempt to work out the problems between the parties. The effect of those letters is in dispute.

Davis voluntarily dismissed its petition without prejudice, subject to the continuation of the intervention of Ragin. In November 2002, Anderson filed a Petition for Ownership against Davis asking that Davis be ordered to transfer the Rworking interest set out in the Participation Agreement to Anderson. That suit was consolidated with Ragin’s intervention.

Davis paid $678,354.80 to clear all the liens on the Nunez Well. According to Anderson, prior to the dispute with Davis, it, along with Three Sisters and Austral, contributed a total of $626,920.78 to the drilling of the well. According to Davis, the well produced net revenue of $3,457,472.00 between September 2003 and April 2005.

At trial, Davis asserted that the letter agreements constituted a novation of the Participation Agreement or a compromise of its pending suit. Therefore, Davis argued that Anderson’s interest in the well, if any had been earned, was forfeited by its failure to fulfill the requirements of the letter agreement. Davis further argued that Ragin was not entitled to enforce its assignment from Anderson against Davis because there was no privity of contract between Ragin and Davis. Anderson argued that it had earned the assignment upon payment of the $75,000.00 consideration and that the letter agreements were not a novation. Anderson further asserted that it was also entitled to the assignment owed Three Sisters because Three Sisters and Anderson were solidary obligees. Ra-gin argued that its assignment from Anderson could be enforced against either Davis or Anderson.

After a trial on the merits, the court rendered judgment and gave written reasons therefor. The court found that Anderson and Three Sisters were not soli-dary obligees because the Participation Agreement clearly provided for Anderson and Three Sisters “separately, to receive separate assignments of 25% each in the leases.” Therefore, the court denied Anderson’s claim to recover Three Sisters’ assignment. The court further found that the letters of July 2002 were neither a novation nor a compromise but rather constituted only “an agreement to agree, because no formal ^documents were prepared to finalize any of the previously agreed to terms.... ” The court found that Anderson earned its 25% working interest “upon execution of the Participation Agreement and upon payment of the $75,000.00 consideration.” With regard to penalties, the court stated that “a default resulted from the incurring of liens by Anderson ... which were to be the financial responsibility of [Anderson] as Operator of the Grace K Nunez # 1 Well. This Court finds the amount of the default to be in the amount of $750,000.00 which was incurred in drilling operations.” The court further noted that after being notified in writing of its default, Anderson took no steps to timely remedy the default and thus became subject to the penalty provisions of the Joint Operating Agreement.

With regard to Ragin, the court ordered Anderson to deliver the 5% interest contracted for to Ragin.

Davis appeals asserting that the trial court erred in failing to find that the letter agreements were either a novation or a compromise. Davis alternatively contends that, if Anderson did earn an assignment of a 25% working interest in the leases and well, the trial court erred in declaring which penalty section of the Joint Operating Agreement applied to Anderson’s default because the election of a penalty was vested in Davis by the Joint Operating Agreement.

DISCUSSION

Novation

“Novation is the extinguishment of an existing obligation by the substitution of a new one.” La.Civ.Code art. 1879. Novation occurs when the parties agree to substitute a new cause for a pre-existing obligation or a substantially new performance for the one previously owed. If a substantial part of the performance owed is unchanged, no novation occurs. La.Civ. Code art. 1881. “The intention to | fiextinguish the original obligation must be clear and unequivocal. Novation may not be presumed.” La.Civ.Code art. 1880. Novation will not occur where there is a modification of an obligation unaccompanied by the intent to extinguish the original obligation. La.Civ.Code art 1881. “The execution of a new writing, the issuance or renewal of a negotiable instrument, or the giving of new securities for the performance of an existing obligation are examples of such a modification.” Id. The trial court based its judgment on its interpretation of the letters. This is a legal finding, and the standard of review for legal findings is de novo. Busby v. Cappaert Manufactured Housing, Inc., 01-496 (La.App. 3 Cir. 10/3/01), 799 So.2d 608. The testimony adduced at the trial in this regard is inconclusive. However, we need look no further than the four corners of the agreement to determine the intent of the parties. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art.2046. Our review of the letters of July 3, 9 and 11, 2002 convinces us that the letters were intended to substitute a new performance for that previously owed and thus constitute a novation.

Davis’ letter of July 3, 2002 states, “this letter will serve as a proposed agreement intended to resolve the issues raised in our prior demand letter .... this letter will remain open for discussion and acceptance only through 1:00 P.M. on July 15, 2002.” The letter was signed “ACCEPTED AND AGREED ON THE DATE SHOWN: ANDERSON EXPLORATION CO., INC.” by Charles R. Anderson, President of Anderson, on August 8, 2002, as well as by representatives of Austral and Three Sisters. On July 9, 2002, Charles Anderson responded to the July 2 letter stating “the terms of the letter are conditionally acceptable .... ” and that “[a] provision for the payment, by Davis Gulf Coast, Inc., of its currently outstanding 17balance will need to be added to the agreement.” On July 11, 2002, a letter was sent by counsel for Davis to Anderson, Three Sisters, and Austral, which states “please consider this as an amendment to the July 3, 2002 letter .... ” and provides for certain payments by Davis. That letter further states: “If this meets with your understanding of our revised agreement, please execute and return the attached copy of this letter to the undersigned.” This letter, too, was signed “ACCEPTED AND AGREED ON THE DATE SHOWN: ANDERSON EXPLORATION CO., INC.” by Charles R. Anderson on July 16, 2002, and by representatives of Three Sisters and Austral. The plain language of the letters indicates that they constitute an agreement and were accepted by all parties.

Additionally, a comparison of the Participation Agreement and the letter agreement shows that the letter agreement constitutes a novation in that it provides for a substitute performance and term, including, but not limited to, erasure of liens before September 15, 2002, surrender of Anderson’s position as operator to Davis, and accountings. These changes in the parties’ obligations are extensive and constitute a novation under the law.

Alternatively, Anderson argues that the letter agreements do not allow for forfeiture of Anderson’s interest in the leases or the well. However, the question is not whether Anderson forfeits its interest, but rather, whether it has earned any interest. The terms of the agreement, which we have found to be a novation, substitute a new performance in return for which Anderson may earn its interest in the leases and the well. Paragraph 8 of the July 3, 2002 letter states:

Subject to the provision of the next succeeding paragraph, if all such liens and privileges are erased of record on or before September 15, 2002, evidence of such furnished to Davis, and Davis is able to independently verify such release, Anderson And Three Sisters shall be | adeemed to have earned the interest provided for in the Participation Agreement.

Paragraph 10 states in part “At such time as you have earned an assignment pursuant to this agreement....”

It is undisputed that Anderson did not perform its obligations under the letter agreements. Therefore, it did not earn the 25% working interest it now claims.

Penalties

Having determined that Anderson is not entitled to an assignment of a 25% working interest, we need not consider Davis’s alternative assignment of error regarding election of a penalty for Anderson’s failure to discharge its financial obligations under the Joint Operating Agreement. We reverse the trial court’s assessment of a penalty against Anderson.

Claims of Ragin

The trial court ordered Anderson to turn over a 5% working interest in the Grace K Nunez Well # 1 to Ragin. Ragin has not appealed the trial court’s denial of its claim that Davis owed it that interest. If Anderson’s claim fails, so does that of Ragin. Therefore, since we have found that Anderson has not earned an interest in the leases and/or well, the trial court’s ruling requiring Anderson to deliver a 5% interest to Ragin is reversed.

CONCLUSION

For these reasons, the judgment of the trial court is reversed. Judgment is rendered in favor of Davis finding that Anderson failed to earn an interest in the leases or the well at issue here. Costs of this appeal are assessed to the Appellee, Anderson.

REVERSED AND RENDERED.

DECUIR, J., would grant rehearing.


text:
    ANDERSON EXPLORATION COMPANY, INC., et al. v. DAVIS GULF COAST, INC.
    No. 06-181.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Rehearing Denied July 26, 2006.

      Robert L. Cabes, S. Joseph Dupuis, Jr., Matthew A. Lynch, Lafayette, LA, for Defendant-Appellant, Davis Gulf Coast, Inc.
    Steven G. Durio, Robert L. Broussard, Lafayette, LA, for Plaintiff-Appellee, Anderson Exploration Co., Inc., for Inter-venor-Appellee, Ragin Rentals, Inc.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

For the reasons set forth in the companion case hereto, Davis Gulf Coast, Inc. v. Anderson Exploration Co., Inc., 06-180 (La.App. 3 Cir. 5/31/06), 933 So.2d 227, the judgment herein is reversed and judgment is rendered in favor of Davis Gulf Coast, Inc. Costs of this appeal are assessed to Anderson Exploration Co., Inc.

REVERSED AND RENDERED.

DECUIR, J., would grant rehearing.