author: SAUNDERS, Judge.

text:
    Fannie CHAVIS v. DILLARD’S, INC.
    No. 11-827.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 2011.
    Thomas E. Townsley, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Fannie Chavis.

      Lindsay Flexer Louatre, Brown Sims, P.C., New Orleans, LA, for Defendant/Appellant, Dillard’s, Inc.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

| jThis is a workers’ compensation case wherein an employee was denied a request by an employer to be classified as permanently and totally disabled. The workers’ compensation judge (WCJ) awarded the employee attorney’s fees, but denied her penalties. Both parties raised issues for review. We affirm and award the employee attorney’s fees for work done on appeal.

FACTS AND PROCEDURAL HISTORY:

In April 2004, Fannie Chavis (Chavis) was employed by Dillard’s, Inc. as a housekeeper. At that time, Chavis was a sexagenarian who had previously had a stroke and blood pressure problems, but worked without restrictions. During the course and scope of her employment, she was injured when several boxes of merchandise fell on her. Dillard’s Inc.’s workers’ compensation insurance company was Ace American Insurance Company (hereinafter Dillard’s, Inc. and Ace American Insurance Company are collectively referred to as “Dillard’s”).

Chavis was treated immediately after the accident at Christus St. Patrick Hospital and then with her primary care physician, Dr. Susan Jones. Thereafter, Dr. Jones referred Chavis to Dr. Clark Gun-derson, an orthopedic surgeon, who diagnosed her with two herniated discs at C4-5 and C5-6. On November 18, 2004, Chavis underwent a two-level fusion.

In July 2005, Dr. Gunderson released Chavis to light duty work with restrictions. Thereafter, due to continued pain and symptoms, Dr. Gunderson ordered another MRI. It showed that Chavis had an additional herniated disc at C3-4. Surgery was again recommended, but Chavis did not undergo the surgery due to blood pressure problems.

| {.Chavis was then sent to Dr. Gregory Gidman, another orthopedic surgeon, as the choice of physician by Dillard’s. Dr. Gidman felt that Chavis had reached maximum medical improvement and was able to perform sedentary work.

Dr. Gunderson gave his final opinion regarding Chavis’ ability to work on June 4, 2007. He found that she was able to perform sedentary work as a result of her cervical injuries. Dr. Gunderson subsequently released Chavis from his care, and she returned to Dr. Jones.

On September 18, 2009, Dr. Jones wrote a letter opining that Chavis was totally and permanently disabled. She based her opinion on Chavis’ complete circumstances of the work accident exacerbating her stroke residuals, shaking and weakness of the left hand and balance problems. Fur-thér, Chavis tested at a third grade level for reading, second grade level for spelling, and second grade level for math. Dr. Jones equated Chavis to a functional illiterate. Thus, according to Dr. Jones, Chavis lacks transferable skills and cannot perform her only previous work of housekeeping.

Dillard’s again sent Chavis to Dr. Gid-man, who reiterated his opinion that Chav-is could return to sedentary work. However, as before, Dr. Gidman’s opinion did not take all of Chavis’ conditions into consideration. His opinion was solely based on her cervical injuries. Dillard’s based its denial of reclassification of Chavis to permanently and totally disabled on this medical evidence.

Dillard’s, throughout the entire process of medical treatment, paid Chavis fully indemnity benefits and sought to find her a job that fit within her restrictions. However, given her opinion of total and permanent disability, Dr. Jones iterated that no such job existed.

Chavis filed a disputed claim for compensation wherein the sole issue was disability status. At the time of the trial, Chavis was being paid supplemental yearnings benefits and has not been denied any access to, or payment of, medical treatment.

After the trial, the WCJ found that Chavis was permanently and totally disabled. Further, the WCJ awarded Chavis attorney’s fees, but not penalties. Dillard’s filed this appeal and raised one assignment of error. Chavis responded by raising an assignment of error and an ancillary matter.

ASSIGNMENT OF ERROR DILLARD’S:

The WCJ erred in awarding attorney’s fees to Chavis.

ASSIGNMENT OF ERROR CHAVIS:

The WCJ erred in failing to award penalties to Chavis.

DISCUSSION OF THE MERITS:

Dillard’s contends in its sole assignment of error that the WCJ erred in awarding attorney’s fees to Chavis. In her assignment of error, Chavis contends that the WCJ erred in failing to award her penalties. We find no merit to either of these contentions. We will address them under the same heading because the imposition of penalties and attorney’s fees are governed by the same standard of review and statutory provision.

Standard of Review:

“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 subject to the manifest error or clearly wrong standard of appellate review.” LeBlanc v. Excel Auto Parts, 11-58, pp. 4-5 (La.App. 3 Cir. 6/1/11), 67 So.3d 687, 690 (citing Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181; LeJeune v. Bell Tower Corp., 09-1222 (La.App. 3 Cir. 4/7/10), 34 So.3d 464).

Attorney’s Fees:

|4Louisiana Revised Statutes 23:1201(F), in pertinent part, states, “[failure to provide payment in accordance with this Section ... shall result in the assessment of ... reasonable attorney fees for each disputed claim ...” This court, in Joiner v. Newberg Venture, 94-1533 (La.App. 3 Cir. 5/3/95), 657 So.2d 206, dealt with an employer changing an employee’s benefits from temporary, total disability benefits to supplemental earnings benefits in an arbitrary, capricious manner without probable cause. In Joiner, we stated, “[t]he insurer must make reasonable efforts to ascertain the employee’s exact medical condition at the time benefits are terminated or changed.” Id., at 209 (citing Miles v. F.D. Shay Contractor, Inc., 626 So.2d 74 (La.App. 3 Cir.1993)).

Here, while the employer did not change the employee’s benefits, nor fail to pay the employee any benefit; it faced a request for a change in disability status and refused. Dillard’s bases its contention that attorney’s fees were improperly awarded on the fact that there was no indifference or undesirable conduct on its part that should have resulted in a penalty of any form. The WCJ felt otherwise, as it asserted that Dillard’s position that Chavis was not permanently and totally disabled was “unsupportable, untenable, and non-defensible. [sic]”

Dillard’s denied Chavis’ request to be classified as permanently and totally disabled based on the opinions of two orthopedic surgeons. Both physicians agreed that Chavis had reached maximum medical improvement and both released her to work with restrictions from her cervical injuries. However, neither orthopedic surgeon’s opinion was based on Chavis’ ability to perform work in light of her entire person, both physically and mentally.

Chavis’ treating family physician, Dr. Susan Jones, provided the only medical evidence directly on point regarding Chav-is’ ability to work when |,^considering her as a whole. Dr. Jones’ testimony on Chav-is’ ability to return to work is as follows:

Q Dr. Jones, do you believe that [Chavis] can perform any type of work?
A I think she’s disabled permanently and totally disabled.
Q Then you answer would be “No”?
A No.

When questioned as to how she reached that conclusion, Dr. Jones pointed to several factors, including, but not limited to, Chavis’ cervical condition, educational level, age, stroke history, anxiety, high blood pressure, balance issues, lack of experience working on a computer, lack of ability to obtain a driver’s license, and left hand shaking and weakness. Dillard’s provided no medical evidence that directly controverted Dr. Jones’ opinion.

Accordingly, after a thorough review of the record, we find a reasonable basis for the WCJ’s imposition of attorney’s fees. Dillard’s failed to ascertain Chavis’ medical condition when she requested to have her status changed to totally and permanently disabled. Rather, it relied on incomplete medical evidence to deny her request and forced her to bring a suit to get her status changed. Thus, Dillard’s conduct caused Chavis to undergo a trial and incur unnecessary attorney’s fees. An award by the WCJ of such attorney’s fees is reasonable. As such, we affirm the WCJ’s imposition of attorney’s fees against Dillard’s.

Penalties:

Chavis, in her sole assignment of error, asserts that the WCJ erred in failing to award her penalties. We do not agree.

The language in La.R.S. 23:1201(F) is different in addressing penalties than when it addressed attorney’s fees. It states, in pertinent part:

| r,Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim ...

La.R.S. 23:1201(F).

In this case, Chavis did not allege any benefits were unpaid nor did she allege that Dillard’s failed to consent to her request to choose a treating physician. Rather, she asserted in her brief that Dillard’s refusal caused her to be paid monthly as a recipient of supplemental earnings benefits instead of weekly as a recipient of permanent and total disability benefits and that Dillard’s continually paid her benefits late.

Our review of the record indicates that Chavis did not develop this assertion. While she alleged entitlement to penalties in her disputed claim for compensation, there is no argument in her post-trial brief as to why she is entitled to penalties nor is there any defense presented by Dillard’s on this issue. Further, there is no evidence in the record of how weekly benefits versus monthly benefits constitutes “[f]ail-ure to provide payment in accordance with” La.R.S. 23:1201(F).

We do note that a recipient of supplemental earnings benefits normally has to submit a form monthly in order to be paid her wage benefits whereas a recipient of total and permanent disability benefits simply receives wage benefits weekly without the necessity of submitting such a form. However, this point was not argued to this court or the court below and is also not developed in the record.

Accordingly, while the issue raised but not developed by Chavis regarding payment weekly versus monthly arguably could provide a reasonable basis for awarding penalties, under La.Code Civ.P. art. 2164 this court can only render a | judgment based on the record before it. Therefore, based on the record, we affirm the WCJ’s decision not penalize Dillard’s for its conduct in this case.

ANCILLARY MATTER:

As an ancillary matter, Chavis properly requested additional attorney’s fees for work done on appeal. We grant this request.

“When an award for attorney’s fees is granted at a lower court level, the recipient of those fees is entitled to additional fees for work done on appeal. This keeps the appellate judgment consistent with the underlying judgment.” McFadden v. Import One, Inc., 10-952, p. 16 (La.App. 3 Cir. 2/9/11), 56 So.3d 1212, 1223 (citing Wilczewski v. Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La.4/13/09), 5 So.3d 170.)

Here, Chavis successfully defended an award of attorneys fees that the WCJ made below. Further, as was the case with attorney’s fees below, Dillard’s occasioned that Chavis incur attorney’s fees on the appellate level. As such, given our review of the record, we find that Chavis is entitled to an award of $2,500.00 for attorneys fees for work done on appeal.

CONCLUSION:

Dillard’s, Inc. and Ace American Insurance Company raised an assignment of error alleging that the WCJ improperly awarded Fannie Chavis attorney’s fees. Fannie Chavis responded by defending the award of attorney’s fees below, asserting an assignment of error that the WCJ improperly denied her request for penalties below, and raising an ancillary matter requesting additional attorney’s fees for work done on appeal.

We affirm the WCJ’s judgment in all respects and award Fannie Chavis $2,500.00 in attorney’s fees for work done on appeal. All costs of these proceedings are assessed to Dillard’s, Inc. and Ace American Insurance Company.

| «AFFIRMED.


source: Caselaw Access Project

author: COOKS, Judge. GREMILLION, Judge,

license: Public Domain

text:
    Ellis HARGRAVE v. STATE of Louisiana.
    No. 11-836.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 2011.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellee, Ellis Hargrave.
    Sylvia M. Fordice, Assistant Attorney General, Lafayette, LA, for Defendant/Appellant, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

| jThe State of Louisiana, through the Department of Transportation and Development (DOTD) appeals the order of the Workers’ Compensation Judge (WCJ) requiring Ellis Hargrave, its employee currently receiving workers’ compensation benefits, to submit to vocational rehabilitation counseling subject to the limitations set forth in this court’s opinion in Crain Bros., Inc. v. Richard, 02-1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523. For the reasons that follow, we affirm, as amended.

FACTS

This dispute originated on June 29, 2005, when Hargrave alleges he was injured while working for DOTD. This Court has heard aspects of this case before. See Hargrave v. State through Dep’t of Transp. and Dev., 09-818 (La.App. 3 Cir. 4/7/10), 35 So.3d 437, writ granted, 10-1044 (La.9/17/10), 45 So.3d 1034, affirmed, 10-1044 (La.1/19/11), 54 So.3d 1102.

DOTD sought to obtain vocational rehabilitation counseling for Hargrave. Difficulty arose when the original counselor, who had begun services, severed his relationship with the agency that DOTD contracted with for such services. A second counselor was unsuccessful in arranging an appointment with Hargrave. DOTD then retained Elier A. Diaz to provide vocational rehabilitation services to Hargrave. The retention of Diaz also fostered some difficulty, prompting Hargrave to file a Motion and Order to Quash Conference. The WCJ appointed Diaz as the vocational rehabilitation counselor in the ease by an order signed on July 20, 2009.

Subsequently, DOTD filed an expedited rule to show cause why Hargrave should not be ordered to cooperate with Diaz or be subject to reduction of his workers’ compensation benefits. The crux of the dispute was Hargrave’s insistence that the counseling be subjected under the terms approved by this Court in Crain Brothers, 842 So.2d 523. The rule was heard, and Hargrave was |2compelled to cooperate with Diaz, but under the conditions approved in Crain Brothers. This appeal ensued, wherein DOTD asserts the WCJ erred in ordering the counseling to proceed under the Crain Brothers conditions, several of which it contends are vague and contrary to the law.

ANALYSIS

Providing vocational rehabilitation services to injured workers is a fundamental aspect of workers’ compensation. Injured employees who are unable to earn wages equal to what they earned before they were injured are entitled to “prompt rehabilitation services.” La.R.S. 23:1226(A). Section 1226 mandates that such services be provided by a licensed vocational coun-seloi*. Those services must be provided by the counselor in accordance with the Code of Professional Ethics for Licensed Rehabilitation Counselors, found in La.Admin.Code 46:LXXXVI.1601 et seq. Section 1226 also prioritizes the appropriate options that must be chosen for the worker, including returning him to the same position, returning him to a modified position, returning him to a related occupation suited to his skills and education, various educational options, and, finally, self-employment.

DOTD acted on its obligation to provide rehabilitation services to Hargrave. In response, Hargrave demanded the following conditions precedent to his accepting rehabilitation services:

(A) That meetings be held at my office at Hargrave’s attorney’s office;
(B) That Diaz agree not to question Hargrave “as to any facts other than those facts necessary to provide vocational rehabilitation under LSA R.S. 23:1226”;
(C)That Hargrave’s attorney “will be simultaneously copied on all documents sent to anyone concerning my client. This is to include correspondence, job analyses, and all appendices to your correspondence”;
la(D) That Hargrave’s attorney be a party to all oral conversations between Diaz and the employer, insurer or their representative or attorney;
(E) That Diaz will not subject Har-grave “to jobs which are inappropriate;”
(F) That Diaz will upon request provide his entire file for copying or provide a copy of your entire file without charge;
(G) That Diaz understands that although he was selected by and paid by Hargrave’s employer/insurer, he was dedicated to finding a job for Hargrave which Hargrave can obtain and also continue to perform;
(H) That the purpose of the vocational rehabilitation Diaz provides is for Hargrave’s benefit;
(I) “No other person has provided vocational rehabilitation in this case;”
(J) That Diaz or his firm “has no connection, directly or indirectly,” with DOTD, its insurer or their agents, except that it was chosen and paid by the employer/insurer to provide vocational rehabilitation in this case.

These conditions are identical to the conditions approved by this court in Crain Brothers.

In Crain Brothers, 842 So.2d at 526, we ruled that La.R.S. 23:1226, “considered in its entirety does not restrict the WCJ from exercising her inherent power to require that a vocational counselor, selected pursuant to the statute, act in accordance with the rules regulating his professional conduct to assure his integrity, honesty and fair dealing in rendering the services prescribed.” The implementation of the Crain Brothers conditions have been upheld in several decisions rendered by this Court. See Luquette v. Clayborn Self, 05-1367 (La.App. 3 Cir. 5/3/06), 929 So.2d 817; Moody v. Abrom Kaplan Mem’l Hosp., 05-527 (La.App. 3 Cir. 12/30/05), 918 So.2d 1203. However, as noted in Interiano v. Fernando Pastrana Construction, 04-430, p. 4 (La.App. 5 Cir. 10/26/04), 887 So.2d 547, 549, we “did not hold that the conditions set forth by the claimant’s counsel were mandatory in every case or that they should be ‘deemed necessary by 14the hearing officer’ in every situation.” We simply found “that La.R.S. 23:1226 does not restrict the worker’s compensation judge from requiring a vocational counselor to agree to certain terms,” and we found no manifest error in the WCJ’s finding that the conditions set forth by the claimant’s counsel under those circumstances were reasonable. Id.

As in Crain, Brothers, there is simply nothing included in the record which indicates that the WCJ committed manifest error in determining these conditions to be reasonable under the facts of this case, with the exception of condition (I). That condition provides “[n]o other person has provided vocational rehabilitation in this case.” We find condition (I) is unreasonable because Diaz cannot assure that no other counselor provided vocational rehabilitation to Hargrave in the current case, given that two other vocational rehabilitation counselors have either attempted or performed vocational rehabilitation services. Thus, adherence to this condition is not possible in this case.

DECREE

For the foregoing reasons, we affirm the WCJ’s imposition of the conditions, with the exception that condition (I) is ordered stricken as it cannot be followed in this particular case. Costs of this appeal are taxed to the State of Louisiana, through the Department of Transportation and Development.

AFFIRMED, AS AMENDED.

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

GREMILLION, Judge,

concurs in part and dissents in part.

|/The State of Louisiana through the Department of Transportation and Development (DOTD) appeals the order of the Workers’ Compensation Judge (WCJ) requiring Ellis Hargrave, its employee currently receiving workers’ compensation benefits, to submit to vocational rehabilitation counseling subject to the limitations set forth by the employee’s lawyer and discussed in this court’s opinion in Crain Bros., Inc. v. Richard, 02-1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523. The majority wishes to place the stamp of judicial imprimatur on applying this lawyer’s conditions on all vocational rehabilitation consultations. For the reasons that follow, I dissent.

Providing vocational rehabilitation services to injured workers is a fundamental aspect of workers’ compensation. Injured employees who are subsequently unable to earn wages equal to what they earned before they were injured are entitled to “prompt rehabilitation services.” La.R.S. 23:1226(A). Section 1226 mandates that such services be provided by a licensed vocational counselor in accordance with the Code of Professional Ethics for Licensed Rehabilitation Counselors, found in La.Admin.Code 46:LXXXVL1601 et seq. Section 1226 also prioritizes the appropriate options that must be chosen for the worker, including returning him to the same position, returning him to a modified position, returning him to a related occupation suited to his skills and education, various educational options, and, finally, self-employment.

DOTD acted on its obligation to provide rehabilitation services to Hargrave. In response, Hargrave’s lawyer required certain conditions precedent to his accepting | {.rehabilitation services: (A) That Diaz’s meetings with Hargrave be held at his attorney’s office in Crowley, Louisiana; (B) That Diaz agree not to question Har-grave “as to any facts other than those facts necessary to provide vocational rehabilitation under LSA R.S. 23:1226;” (C) That Hargrave’s attorney “will be simultaneously copied on all documents sent to anyone concerning my client. This is to include correspondence, job analyses, and all appendices to your correspondence;” (D) That Hargrave’s attorney be a party to all oral conversations between Diaz and the employer, insurer, representative, or attorney; (E) That Diaz will not subject Hargrave “to jobs which are inappropriate;” (F) That Diaz will upon request provide his entire file for copying or provide a copy of his entire file without charge; (G) That Diaz understands that although he was selected by and paid by Hargraves’s employer/insurer, he was dedicated to finding a job for Hargrave which Hargrave can obtain and also continue to perform; (H) That the purpose of the vocational rehabilitation Diaz provides is for Har-grave’s benefit; (I) “No other person has provided vocational rehabilitation in this case;” and, (J) That Diaz or his firm “has no connection, directly or indirectly,” with DOTD, its insurer or their agents, except that it was chosen and paid by the employer/insurer to provide vocational rehabilitation in this case.

Our approval of these conditions in Crain Brothers was clearly premised on the finding in that particular case that the WCJ did not manifestly err in imposing the conditions.

The WCJ in Hargrave’s case approved these restrictions on the rehabilitation services Diaz was to provide. In argument and in brief, Hargrave asserts that the sole justification for these restrictions is to prevent Diaz from conducting a “sham rehabilitation.” Hargrave cites a plethora of cases in which courts found that the rehabilitative services were not being provided as the legislature intended. The cited | {.jurisprudence indicates that courts recognize “sham rehabilitations” when they are perpetrated. Sham rehabilitation efforts do occur, but the law does not presume that all rehabilitation efforts seek this end.

Nevertheless, I find that certain conditions imposed by the WCJ would prevent misconduct by the counselor. The counselor’s job is to find real alternatives for the injured employee and not to act as a litigation consultant to the employer. I find no manifest error in the requirement that Hargrave’s attorney be a party to any discussions about his client or that he be copied simultaneously with all correspondence from Diaz pertaining to anyone concerning Hargrave (restrictions (C) and (D)). The condition that Diaz understand and agree that his client is Hargrave, restriction (G), comports with Canon 2 of the Code of Professional Ethics for Licensed Rehabilitation Counselors. La.Admin.Code 46:LXXXVL1602. A restriction that requires the counselor to abide by cannons of ethics, which are referenced in La.R.S. 23:1226, is necessary, but it cannot be unreasonable. Likewise, the requirements that the purpose of Diaz’s consultation is to find a suitable job for Hargrave, restriction (G), and that the purpose of the consultation is to benefit Hargrave, restriction (H), clearly conform to the purpose expressed in La.R.S. 23:1226 and are thus unnecessary but not unreasonable.

However, it is impossible for Diaz to abide by restriction (I) because two others have already attempted, and one to a certain degree accomplished, the performance of vocational rehabilitation services for Hargrave. It was manifest error to impose this restriction on Diaz.

I also find it manifestly erroneous to impose any restriction on the counselor that impedes the rehabilitation process or that is vague. For instance, restriction (E) impedes the rehabilitation process. The counselor is required to determine whether a job is “appropriate” for the injured employee, and if the employee disagrees, the WCJ then makes that determination. This restriction, the violation of which could subject |4Piaz to sanction, serves to chill the actions of the counselor, who will have to second-guess whether he has violated an order of the WCJ.

Similarly, restriction (B) fails to specify what is off-limits in terms of the counsel- or’s questioning of the employee. The restriction does not provide the counselor with standards sufficient to allow Diaz to determine his compliance. See Mendoza v. Leon’s Plumbing Co., 04-0189 (La.App. 4 Cir. 12/22/04), 892 So.2d 600.

I find no manifest error in requiring Diaz make his file available for copying, restriction (F), but do find that the WCJ did manifestly erred in requiring that said copying be at Diaz’s expense. The party seeking copies customarily is required to pay for them. If Hargrave prevails at trial, those copies can be taxed as costs of court. Furthermore, while shifting this expense burden helps keep litigation dollars in Hargrave’s pocket, it does absolutely nothing to prevent the alleged ill of “sham rehabilitations.”

Restriction (A), the requirement that all meetings take place at Hargrave’s attorney’s office, is primarily intended to convenience Hargrave’s counsel, not to prevent the perpetuation of a “sham.” Nevertheless, I find no manifest error in the WCJ’s ruling.

Conversely, restriction (J), which requires an affirmation that neither Diaz nor his “firm” has a “connection” with DOTD, is impermissibly vague. Without a more definite statement as to what form of “connection” between Diaz or his firm and DOTD is prohibited, the restriction is unreasonable.

The decision of the WCJ to impose restrictions on vocational rehabilitation services is reviewed under the manifest error standard. But those restrictions must adequately inform the counselor of the duties imposed and the practices proscribed. They may not be vague. Further, the decision to impose restrictions on rehabilitative services must not impede the rehabilitative process. No boilerplate list of restrictions |,5has heretofore been given sanction in all cases; the decision to impose restrictions must be made on a case-by-case basis.

I would affirm the WCJ’s imposition of restrictions (A), (C), (D), (F), (G), and (H), subject to the aforementioned amendment, and reverse the imposition of restrictions (B), (E), (I), and (J).


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana in the Interest of A.H.
    No. 2011-CA-1152.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 21, 2011.

      Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

Iiln this appeal, the juvenile, A.H., appeals the judgment of the Juvenile Court for the Parish of Orleans adjudicating him delinquent after finding he committed the offense of simple robbery. Specifically, A.H. argues that that juvenile court erred in adjudicating him delinquent because the evidence adduced at trial was insufficient to sustain the adjudication, and that the juvenile court erred in shifting the burden of proof to the defense before rendering a verdict. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

The State filed a delinquency petition charging A.H. with violating La. R.S. 14:65, simple robbery. On June 28, 2011, the juvenile court held an adjudication hearing.

At the adjudication hearing, Officer Pearson testified that she was working on March 31, 2011, when a complainant came into the police station at 12:47 a.m. and stated that he was just robbed a few blocks from the station at the corner of Burgundy St. and Pauline St. The complainant indicated that he was robbed by three young men, two wearing dark clothing and one wearing a blue shirt with a yellow logo on it. After obtaining the description, Officer Pearson proceeded to |2the area where the robbery occurred and canvassed the area, looking for the perpetrators.

Officer Pearson observed three individuals matching the description and when she headed in their direction, the individuals ran. Officer Pearson attempted to follow them, but lost sight of them for a short time. Officer Pearson continued searching and about a minute after losing sight of the three individuals who ran, Officer Pearson found one of them walking alone in the 700 block of Gallier St. Officer Pearson requested that the suspect, A.H., approach her police vehicle. Officer Pearson asked A.H. his age and whether or not he lived in the area. Officer Pearson indicated that the complainant arrived and identified A.H. as one of the perpetrators at 1:00 a.m., at which time A.H. was placed under arrest.

Next, the State called Jon Akins. Mr. Akins testified that on March 31, 2011, he was robbed. Mr. Akins stated that he was approached by three young black males, knocked off his bike, and had money taken from him, between five and ten dollars. Mr. Akins indicated that the description he provided to the police was that two of the males were tall, maybe a little over six foot, kind of slim, wearing dark clothes and the other was heavier set and wearing a blue pullover or polo kind of shirt with a little bit of white on the crest and “dark shorts of [sic] pants.” Mr. Akins testified that on the night of the robbery, about fifteen minutes after the robbery, he positively identified A.H. as the person who took his money during the robbery.

During the hearing, Mr. Akins further positively identified A.H. as the perpetrator. Mr. Akins stated that A.H. was wearing a blue polo shirt and dark jean shorts the night of the robbery. Mr. Akins identified the clothing retrieved from A.H. the night he was arrested, State Exhibit Number 1, as the clothing the | ^perpetrator was wearing the night he was mugged. Specifically, Mr. Akins testified, “The pants look about right. Yeah. The shoes I wasn’t sure, I really wasn’t paying attention to his feet. But the polo shirt matches.”

A.H. testified that on the date in question, his father dropped him off at his grandmother’s house, he rested for a bit, and then showered. A.H. stated he called his mother because he wanted to see her. A.H. testified that his mother arrived between 12:00 a.m. and 12:30 a.m. They ate chicken salad sandwiches and talked for a while, then left his grandmother’s house between 12:30 a.m. and 12:50 a.m. A.H. testified that after they arrived at his mother’s house, he logged on to the computer and his mom went into the back room. Thereafter, A.H. stated that he decided to walk to the store between 12:55 a.m. and 1:00 a.m. because he was hungry. A.H. testified that he did not tell his mother where he was going because it was after curfew. A.H. noted that he had $7.00 left from the $10.00 bill his father gave to him earlier.

When questioned by the juvenile court regarding the time frame for the evening, A.H. stated that he did not exactly remember what time everything occurred because he was not really paying attention. Then, A.H. claimed that he received a text message from his girlfriend at 12:25 a.m. as he was leaving his grandmother’s house and getting into his mother’s vehicle. A.H. stated that it took about 10 to 15 minutes to get from his grandmother’s house to his mother’s house. A.H. testified that he logged onto the computer for five minutes, then decided to go look for a store to get a snack as there was no food in the house. A.H. stated that he did not tell anyone where he was going.

A.H. testified that the first store he approached was closed, so he kept walking. Shortly thereafter, a police officer pulled in front of him and questioned |4him. A.H. stated that he did not run from the police, and that he had never been arrested before.

The juvenile court requested A.H.’s cell phone record showing when the text message was received on the night in question. A.H. stated that he was not able to obtain a cell phone record from Boost, his cell phone provider. At that point, the juvenile court determined that no further delay was necessary and adjudicated A.H. delinquent, finding he committed the offense of simple robbery. The juvenile court placed A.H. on supervised probation. A.H. subsequently filed this appeal.

STANDARD OF REVIEW

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then the standard of proof required in a criminal proceeding against an adult.” State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4 Cir. 12/30/93); State in the Interest of G.M., 617 So.2d 219, 221 (La.App. 5 Cir. 4/14/93). As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61, writ denied, 2009-1129 (La.1/22/10), 25 So.3d 139.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable [¡¡in juvenile delinquency cases. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. (Emphasis in the original.). Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979); State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571; State ex rel. T.W., 2009-532 (La.App. 3 Cir. 10/7/09), 21 So.3d 465; and State in the Interest of S.S., 557 So.2d 407 (La.App. 4 Cir.1990). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

DISCUSSION

In the first assignment of error, A.H. alleges that the court erred in adjudicating him delinquent as the evidence adduced at trial was insufficient to sustain the adjudication.

Simple robbery is defined as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.” La. R.S. 14:65.

lfiA.II. argues that the court’s request that A.H. produce his cell phone record indicates that the court clearly had doubt as to whether or not A.H. was the actual person who committed the offense. This argument is spurious and ignores the trial court’s statement that A.H. was placed on the stand to disprove what the prosecution had already proven. The trial court’s own words refute A.H.’s argument.

Mr. Akin testified that A.H. was the individual who took five to ten dollars from him after Mr. Akin was knocked off his bike by A.H. and two other individuals. Thus, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have adjudicated A.H. delinquent, finding he committed the offense of simple robbery beyond a reasonable doubt.

Next, A.H. argues that the juvenile court erred in imposing a burden on A.H. to prove its theory of defense. A.H. argues that the prosecution bears the burden of proving every element of the offense beyond a reasonable doubt. Again, A.H. argues that in requesting that A.H. provide his cell phone records, the court im-permissibly shifted the burden to A.H. A.H. notes that only in the case of an affirmative defense, such as intoxication or insanity, is the defendant required to prove the existence of the condition at the time of the offense. A.H. argues that he did not set forth an affirmative defense, but simply negated the allegation by the State that he committed the offense of simple robbery.

First, A.H. states that the defense elicited testimony from Mr. Akins that he was robbed by someone wearing jean shorts stopping just below the knee. State Exhibit Number 1, A.H.’s clothing from the night in question, contain a pair of full length jeans. However, A.H. ignores the entirety of Mr. Akins’ testimony. Mr. Akins testified that the perpetrator was wearing a blue pullover, polo kind of shirt |7and “dark shorts of [sic] pants.” Later, Mr. Akins states that the perpetrator was wearing “dark jean shorts.” When asked to identify State Exhibit Number 1, Mr. Akins, replied, “[t]he pants look about right.” When asked by counsel for A.H. whether the person he saw was wearing shorts which stopped below the person’s knee, Mr. Akins responded, “I believe so. They might have been a little bit longer.” Mr. Akins did not testify that the individual was definitely wearing jean shorts which stopped just below the knee. Further, when reviewing State Exhibit Number 1, Mr. Akins testified, “[b]ut the polo shirt matches.”

Next, A.H. points to Officer Pearson’s testimony. A.H. argues Officer Pearson did not put in her report that A.H. was one of the three individuals she initially saw that fit the description of the perpetrators and that ran from her, that Officer Pearson did not see A.H. sweating, and that A.H. cooperated with Officer Pearson. However, Officer Pearson testified that A.H. was one of the individuals she observed running. And Officer Pearson testified that only a minute passed between the time the three individuals took off running and she the time she located one of them, namely A.H.

“When a key issue at trial is whether the defendant was the perpetrator of the crime, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof beyond a reasonable doubt.” State in the interest of C.D., 2011-0121, p. 7 (La.App. 4 Cir. 6/29/11), 69 So.3d 1219, 1223, citing State v. Bright, 98-0398, p. 22 (La.4/11/00), 776 So.2d 1134, 1147. Therein, an officer identified C.D. as the seller of narcotics. State in the Interest of C.D., 2011-0121, p. 3, 69 So.3d at 1221. The lone identification was given by an officer who observed a narcotics sale at 2033 Wagner by an individual in a black t-shirt and black shorts. Id., p. 2, 69 So.3d at 1221. The residence |8remained under surveillance by another officer for thirty to forty-five minutes while the officer obtained a warrant. Id., p. 3, 69 So.3d at 1221. After the warrant was executed, the officer exited the residence and observed C.D. across the street. Although C.D. was wearing blue jeans and a yellow-white plaid shirt, the officer questioned C.D. and eventually placed him under arrest for distribution of narcotics. Id. In overturning the conviction, the court noted that no explanation was offered as to how C.D. managed to change clothing and appear on the opposite side of the street without being detected. Further, the court noted that no drugs or contraband were located upon C.D., C.D. lacked a connection to the residence at 2033 Wagner. Id., p. 7, 69 So.3d at 1223. A resident of 2033 Wagner testified that she knew C.D. from the neighborhood, but that C.D. had never been to her home or porch. Id., p. 4, 69 So.3d at 1222. While noting that eye-witness testimony alone can be sufficient evidence to satisfy the State’s burden, the court found the lone identification insufficient. Id., p. 7, 69 So.3d at 1223. The court reversed the conviction. Id., p. 10, 69 So.3d at 1225.

Unlike C.D., A.H. was observed in the same vicinity of the robbery, in the same color and type of shirt as the perpetrator of the robbery, within minutes of the robbery. A.H. possessed $7.00 and Mr. Akins alleged that between $5.00 and $10.00 was taken during the robbery. While Mr. Akins did not recall with certainty whether A.H. wore jean shorts or full-length jeans, Mr. Akins positively identified the shirt A.H. was wearing as the same shirt his perpetrator was wearing. Further, Mr. Akins positively identified A.H. as the perpetrator of the robbery on the night of the robbery, as well as in court. The State negated any reasonable probability of mis-identification in carrying its burden of proof beyond a reasonable doubt that A.H. committed the offense of simple robbery.

1 flNext, A.H. argues that he negated the allegation that he committed the' robbery by eliciting the time of the offense from the officer and contrasting that with his testimony of his whereabouts on the night in question. However, the trial court noted A.H.’s timeline was inconsistent. A.H. testified several times that his mother arrived at his grandmother’s house between 12:00 a.m. and 12:30 a.m. and they ate chicken salad sandwiches and talked, then he left his mother and grandmother alone while he went to pack his uniform for school the next day. Then, A.H. stated they left his grandmother’s house to go to his mother’s house at 12:25 a.m. The juvenile court noted the inconsistencies throughout A.H.’s story and then stated that there was a positive identification from the victim and the State had proven its case. While the juvenile court was going to allow A.H. to submit the cell phone records, the juvenile court never stated that the State had not met its burden of proving A.H. committed the offense of simple robbery beyond a reasonable doubt. Granting great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony, we find no error in the juvenile court’s adjudication as the record evidence as a whole furnishes a basis for the adjudication.

ERRORS PATENT

Our review of the record in this case reveals one error patent. In State in the Interest of A.H., 2010-1673, p. 9 (La.App. 4 Cir. 4/20/11), 65 So.3d 679, 685, we determined that conducting an error patent review in juvenile delinquency cases was warranted.

La. Ch.C. art. 844 provides that the petition utilized to commence a juvenile delinquency proceeding must be verified. The petition utilized to commence the proceedings against the A.H. herein is unverified. However, in State in the Interest of A.H., we found that the prosecution of A.H. ratified the unverified petition. State in the Interest of A.H., 2010-1673, p. 9, 65 So.3d at 685. Additionally, the Supreme Court has noted that the proper remedy for a lack of a signature on a petition is a motion to quash. If the motion is not filed, the error is waived. State v. White, 404 So.2d 1202, 1205 (La.1981).

Thus, while our review determined that the State failed to obtain a verification of the petition, we find that the prosecution of A.H. ratified the unverified petition. Further, A.H. failed to file a motion to quash the petition. Therefore, we deem the error to be harmless.

CONCLUSION

Accordingly, we affirm the adjudication of delinquency for the offense of simple robbery.

AFFIRMED


author: PARRO, J.

text:
    REGIONS BANK v. LOUISIANA PIPE & STEEL FABRICATORS, LLC and Alvin Paul Loupe.
    No. 2011 CA 0839.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.

      J. Eric Loekridge, Benjamin M. Anderson, Kean Miller LLP, Baton Rouge, LA, for Plaintiff-Appellee Regions Bank.
    James A. Harry, Springfield, LA, for Defendant-Appellant Alvin Paul Loupe.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

| ¡Alvin Paul Loupe appeals a judgment in favor of Regions Bank (Regions), finding that he had guaranteed a business loan of Louisiana Pipe & Steel Fabricators, LLC (La. Pipe) and was solidarily obligated with La. Pipe to pay Regions the balance due on that loan, plus interest, late fees, attorney fees, and expenses as provided in the promissory note. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 21, 2006, representatives of La. Pipe executed a “Business Loan Agreement” establishing a line of credit in the amount of $250,000 with Regions. In addition to the Business Loan Agreement, the representatives of La. Pipe signed a “Promissory Note” payable to Regions in the amount of $250,000 and a “Commercial Security Agreement” granting Regions a security interest in all accounts receivable and all business assets of La. Pipe. Loupe, a member/owner/manager of La. Pipe, personally signed a “Commercial Guaranty” in favor of Regions on the same date. The Promissory Note signed by representatives of La. Pipe had a maturity date and a full repayment date, including interest, of March 18, 2007.

As of January 3, 2008, La. Pipe had made principal and interest payments to Regions in the amount of only $208,611.89, which did not fully pay its indebtedness. On August 8, 2008, Regions made demand on Loupe for full payment of the balance due. In May 2010, Regions filed suit against La. Pipe and Loupe, seeking recovery of the Ml balance of principal, interest, and late fees that La. Pipe had failed to pay under the Loan Agreement, along with attorney fees and expenses and all court costs. Regions filed a motion for summary judgment on December 16, 2010, stating that there were no genuine issues of material fact; the motion was supported by an affidavit from Thomas E. D’Antoni (D’Antoni), Senior Vice President for Regions and the bank officer | .¡charged with responsibility for the obligation owed to Regions by La. Pipe and Loupe. No evidence was filed in opposition to the motion. The hearing on the motion for summary judgment was held on February 14, 2011. On February 25, 2011, the trial court entered a judgment for the balance due on the Loan Agreement against La. Pipe and Loupe, in solido. Loupe appeals the judgment of the trial court.

APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Washauer v. J.C. Penney Co., Inc., 03-0642 (La.App. 1st Cir.4/21/04), 879 So.2d 195, 197. If the moving party will bear the burden of proof at trial on the matter before the court on the motion, as in this case, the burden of proof remains on the mover. LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. MAPP Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431.

Affidavits

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. LSA-C.C.P. art. 967(A). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party fails to do so, summary judgment shall be rendered against him if appropriate. LSA-C.C.P. art. 967(B); Robles v. ExxonMobile, 02-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341; Williams v. Galofaro, 11-0487 (La.App. 1st Cir.11/9/11), 79 So.3d 1068, 1070.

Guaranty

The contract of guaranty is equivalent to a contract of suretyship. Katz v. Innovator of America, Inc., 552 So.2d 724, 726 (La.App. 1st Cir.1989). Suretyship must be express and in writing. LSA-C.C. art. 3038. Suretyship is established upon receipt by the creditor of the writing evidencing the surety’s obligation. The creditor’s acceptance is presumed, and no notice of acceptance is required. LSA-C.C. art. 3039. An agreement to become a surety must be expressed clearly and must be construed within the limits intended by the parties to the agreement. Placid Refining Co. v. Privette, 523 So.2d 865, 867 (La.App. 1st Cir.), writ denied, 524 So.2d 748 (La.1988). Contracts of guaranty or suretyship are subject to the same rules of interpretation as contracts in general. Ferrell v. South Central Bell Telephone Co., 403 So.2d 698, 700 (La.1981).

ANALYSIS

Loupe contends the trial court erred in determining that the affidavits and exhibits presented by Regions in support of its motion for summary judgment were sufficient. Louisiana Code of Civil Procedure article 967 states that supporting affidavits shall be made on personal knowledge, shall provide facts that would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated in the affidavit. Regions filed its motion for summary judgment with the supporting affidavit of D’Antoni, a Senior Vice President for Regions charged with responsibility for La. Pipe’s obligation to the bank. His affidavit related that he had personal knowledge of the obligations of La. Pipe and Loupe under the Loan Agreement and guaranty. D’Antoni identified the Business Loan Agreement, the Promissory Note, and the Commercial Security Agreement signed by representatives of La. Pipe; he also identified the Commercial Guaranty contemporaneously signed by Loupe in connection with the Loan Agreement between Regions and La. Pipe.

|SA bank vice president’s summary judgment affidavit is sufficient, where the vice president is familiar with the account and the bank’s business records. In that circumstance, it is not necessary for the affiant to show that he personally prepared the business records or that he had direct, independent, first-hand knowledge of their contents. See Whitney Nat. Bank v. Reliable Mailing & Printing Services, Inc., 96-968 (La.App. 5th Cir.4/9/97), 694 So.2d 479, 481; Hibernia Nat. Bank v. Rivera, 07-962 (La.App. 5th Cir.9/30/08), 996 So.2d 534, 540. As a Senior Vice President for Regions and tasked with monitoring the Loan Agreement signed by La. Pipe, D’Antoni had the personal knowledge necessary and was competent to testify as to these matters. D’Antoni testified as to what he knew about La. Pipe’s and Loupe’s obligations based on his personal knowledge of the account and review of the bank’s business records. His testimony was supported by the very documents about which he testified. See Brown v. Adolph, 96-1257 (La.App. 1st Cir.3/27/97), 691 So.2d 1321, 1326. Thus, we conclude, as did the trial court, that the affidavit and evidence submitted by Regions were sufficient under LSA-C.C.P. art. 967.

Loupe also argues that because there was no evidence of the date of delivery of the Commercial Guaranty to Regions, Regions has not shown that the debt occurred after the formation of the guaranty. Therefore, Loupe contends that Regions has not established that he undertook the obligation of paying the balance of the unpaid note. ■ However, the record reflects that on September 21, 2006, Loupe personally signed the guaranty, “absolutely and unconditionally guaranteeing] full and punctual payment and satisfaction of the indebtedness” of La. Pipe to Regions. The guaranty document stated that the guaranty became “effective upon guarantor’s execution and delivery” of the guaranty to Regions. See LSA-C.C. art. 3038. The guaranty further reflected that no formal acceptance by Regions was necessary to make the guaranty effective; that provision is consistent with Article 3039, which states that once the creditor receives the writing evidencing the obligation, acceptance is presumed and no notice of acceptance is required. Regions provided evidence from D’Antoni that the guaranty was signed | (-¡contemporaneously with the other documents involved in the Loan Agreement, and the dates on the docu-merits confirm this fact. Regions further showed that the original documents involved in the Loan Agreement and guaranty were made and “are maintained by Regions” as a regular part of its business. Therefore, since Regions has possession of the guaranty, it has established that the guaranty was “delivered” to it and thus became effective. Also, according to the wording of the guaranty, Loupe agreed “TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF [LA. PIPE], NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS.” Since Loupe agreed to guarantee any indebtedness of La. Pipe that may already have been in existence when he executed the guaranty, there was no need for Regions to show that the indebtedness secured by the guaranty occurred subsequent to its execution or that the guaranty was delivered to it before the loan was made. Jurisprudence has established that the pre-existing debt or obligation of a third party is a sufficient consideration for a contract of guaranty. See LSA-C.C. art. 3036, Revision Comments-1987, Comment (b); see also Commercial Nat. Bank v. Richardson, 163 La. 933, 113 So. 152, 154 (1927); Home Ins. Co. v. Voorhies Co., 168 So. 724, 726 (La.App. 1st Cir.1936). In this case, as a manager/owner/representative of La. Pipe, Loupe had an interest in promoting the business of the company. This fact also supports a finding of sufficient consideration for his guaranty. See Home Ins. Co., 168 So. at 726; Katz v. Innovator of America, Inc., 552 So.2d 724, 727 (La.App. 1st Cir.1989). Therefore, any debt owed to Regions by La. Pipe before or after the execution of the Loan Agreement became the obligation of Loupe when he signed the guaranty.

Loupe further claims the court erred in determining that Regions proved Loupe had breached an obligation to it and that it suffered damages as a result. D’Antoni’s affidavit stated that the Loan Agreement was in default after La. Pipe and Loupe failed to make complete payments on the debt. D’Antoni also testified as to the amount of the partial payment received on the Loan Agreement, the amount still outstanding, and |7the makeup of the outstanding figures. His affidavit was sufficient to show that La. Pipe had executed a Loan Agreement with Regions for the payment of a promissory note in the amount of $250,000. The affidavit further established that La. Pipe had defaulted on this Loan Agreement, that Loupe was the guarantor of La. Pipe’s outstanding obligation, and that Loupe had made no payments to Regions. D’Antoni’s affidavit also stated that La. Pipe and Loupe still owed Regions the amount of $37,713.21 in principal, $9,199.41 in interest, and $337.17 in late fees, with interest continuing to accrue at $3.10 per diem. We conclude that Regions proved Loupe breached an obligation to Regions and that Regions suffered a loss as a result of that breach.

CONCLUSION

Based on the above, the judgment of the trial court granting summary judgment in favor of Regions Bank is affirmed. All costs of this appeal are assessed against Alvin Paul Loupe.

AFFIRMED.

      . The determination of the amount of attorney fees to be awarded was reserved by the judgment to be addressed later. The judgment was designated as final by the trial court.

      . We will refer to the transaction represented by these documents as the Loan Agreement.

      .The petition states that Regions extended the term several times, resulting in the note being fully due and payable on October 26, 2007.


author: HIGGINBOTHAM, J.

text:
    Sherry HIRSTIUS v. TROPICARE SERVICE, LLC and Zenith Insurance Company.
    No. 2011 CA 1080.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.
    Dannie P. Garrett, III, Baton Rouge, LA, for Plaintiff/Appellant, Sherry Hirsti-us.
    John Chris Turnage, Shreveport, LA, for Defendants/Appellees, Tropicare Service, LLC and Zenith Insurance Co.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

12In this workers’ compensation case, Sherry Hirstius appeals the decision of the workers’ compensation judge (WCJ) denying her claim for workers’ compensation benefits.

On April 9, 2010, Sherry Hirstius was employed in a supervisory capacity by Tropicare Service, LLC (Tropicare), when she allegedly felt her back pop while moving a pallet of plants. She sought medical treatment on April 14, 2010, and was diagnosed with an injury to her lower back. She sought workers’ compensation benefits from her employer, but her claim was denied. Thereafter, on June 3, 2010, Ms. Hirstius filed a disputed claim for compensation with the Office of Workers’ Compensation, seeking to collect workers’ compensation benefits, penalties, and attorney’s fees from Tropicare. Following a hearing before the WCJ, judgment was signed on March 28, 2011, denying her claim.

The Louisiana Workers’ Compensation Act provides coverage to an employee for personal injury caused by an accident arising out of and in the course of his employment. See La. R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme, as adopted by the legislature, and must establish that the accident was employment-related, that the accident caused the injury, and that the injury caused the disability. Clausen v. D.A.G.G. Construction, 2001-0077 (La.App. 1st Cir.2/15/02), 807 So.2d 1199, 1201, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851.

Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Id. A worker’s testimony is sufficient to discharge the burden of proving an accident, provided that two elements are first satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, |3and (2) the worker’s testimony is corroborated by the circumstances surrounding the alleged incident. Carter v. Lakeview Regional Medical Center, 2004-1794 (La.App. 1st Cir.9/23/05), 923 So.2d 686, 688; Penn v. Options, Inc., 2002-1987 (La.App. 1st Cir.6/27/03), 858 So.2d 557, 560. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 2010-0245 (La.1/19/11), 56 So.3d 215, 219. see also Roberts v. Thibodaux Healthcare Center, 2005-0774 (La.App. 1st Cir.3/24/06), 934 So.2d 84, 92.

As in other civil cases, in reviewing the WCJ’s factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error standard of review. Lafleur v. Alec Electric, 2004-0003 (La.App. 1st Cir.12/30/04), 898 So.2d 474, 478, writs denied, 2005-0276, 2005-0277 (La.4/8/05), 898 So.2d 1287, 1288; Moran v. G & G Construction, 2003-2447 (La.App. 1st Cir.10/29/04), 897 So.2d 75, 79, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148. Under that standard of review, an appellate court may only reverse a WCJ’s factual determinations if it finds from the record that a reasonable factual basis for the finding does not exist and that examination of the entire record reveals that the finding is clearly wrong. Stobart v. State Through Dept. of Transportation and Development, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Id. at 883.

On the date of the alleged accident, Ms. Hirstius was working with two other individuals, neither of whom witnessed the accident or was aware that she was injured. The WCJ, in written reasons for judgment, found the testimony that no one working with the claimant on that date was aware of any accident was important to Ms. Hirstius’s credibility. The judgment noted that Ms. Hirstius’s 14burden of proof was preponderance of the evidence and stated “[cjlaimant [Sherry Hirstius] did not carry her burden of proof that she was involved in an accident.” (Emphasis in original.)

Ms. Hirstius alleged that the WCJ did not appropriately apply the law as articulated by the Louisiana Supreme Court in Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992). In the March 28, 2011 judgment, the WCJ cited Bruno and stated that “the worker’s testimony must be corroborated by the testimony of fellow workers, his spouse and other close family members, friends, or the introduction of medical evidence.” (Emphasis added.) The standard expressed in Bruno uses the disjunctive “or” instead of the conjunctive “and”; therefore, Ms. Hirstius contends that the WCJ incorrectly required corroborating testimony from each of the enumerated individuals. While this court recognizes that the judgment partially misstates the Bruno case, it is clear from the WCJ’s written reasons and judgment that it did not require testimony from each of the individuals listed and that it used the correct burden of proof.

After a thorough review of the evidence presented and considering the credibility determinations made by the WCJ, we conclude that the record reasonably supports the WCJ’s finding that Ms. Hirstius failed to prove by a preponderance of the evidence that she was involved in an accident on April 9, 2010, which would have entitled her to benefits under the Workers’ Compensation Act. Further, our review of the record establishes that the factual determinations of the WCJ were not clearly wrong.

For the foregoing reasons, the decision of the WCJ is affirmed. Costs of this appeal are assessed to Sherry Hirstius.

AFFIRMED.


author: McCLENDON, J.

text:
    RISING RESOURCES CONTROL, INC. v. KIE COMMODITIES AND FINANCE, L.L.C. and Dennis McLain.
    No. 2011 CA 1026.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.
    Rehearing Denied Feb. 22, 2012.

      Jerald P. Block, Thibodaux, LA, for Plaintiff/Appellant Rising Resources Control, Inc.
    Andrew Reed, Morgan City, LA, for Defendants/Appellees KIE Commodities and Finance, L.L.C., and Dennis McLain.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

12Appellant seeks review of the district court’s judgment that granted a declinato-ry exception raising the objection of improper venue. Because we conclude that the district court did not err in enforcing the forum-selection clause in appellant’s contract with appellee, we affirm.

FACTS AND PROCEDURAL HISTORY

In March 2010, Rising Resources Control, Inc. (Rising Resources) entered into a contract with KIE Commodities and Finance, LLC (KIE), a company with its principal place of business in Detroit, Michigan. Rising Resources claims that the contract was confected in St. Mary Parish, Louisiana. Rising Resources agreed to purchase scrap metal from KIE, which leased a construction yard and office in St. Mary Parish. The agreement also contained the following provisions:

CONTRACT ARBITRATION
IF ANY DISPUTE/LITIGATION ARISES THE TWO PARTIES AGREE TO SOLVE IT BY FRIENDLY NEGOTIATION. IF THE DISPUTE PROVES IMPOSSIBLE TO SETTLE, IT SHALL BE FINALLY SETTLED IN THE STATE OF MICHIGAN, USA.
GOVERNING LAW
THE CONTRACT WILL BE GOVERNED, AND INTERPRETED IN ACCORDANCE WITH THE LAWS AND RULES OF ARBITRATION IN THE USA, MICHIGAN.
APPLICABLE LAWS AND DEFINITIONS
... ALL LITIGATION AND OR LEGAL ISSUES SHALL BE PERFORMED AND EXECUTED IN THE USA, STATE OF MICHIGAN.

On August 2, 2010, Rising Resources filed a Petition for Damages in the Sixteenth Judicial District Court of Louisiana for the Parish of St. Mary, seeking damages from KIE arising from an alleged breach of contract. On October 8, 2010, KIE filed a “Declinatory Exception [Of] Improper Venue,” asserting that St. Mary Parish was an improper venue and that the proper venue, in accordance with the terms of the parties’ contract, was the State of Michigan.

| ¡¡Following a hearing, the district court granted KIE’s declinatory exception and dismissed Rising Resources’ suit. Rising Resources has appealed, assigning the following errors for review:

1. The District Court erred in finding that enforcement of the contract’s forum-selection clause was reasonable and just.
2. The District Court erred in finding that enforcement of the contract’s forum-selection clause would not contravene the public policy of this state.

DISCUSSION

Forum-selection clauses, or choice-of-exclusive-forum clauses, are pri-ma facie valid, legal, and binding in Louisiana, and a party seeking to set aside such a provision bears a heavy burden of proof. Vallejo Enterprise, L.L.C. v. Boulder Image, Inc., 05-2649, p. 3 (La.App. 1 Cir. 11/3/06), 950 So.2d 832, 835. Such a clause should be enforced unless the resisting party clearly proves that enforcement of the forum-selection clause would be unreasonable and unjust, or that the clause arises from fraud or overreaching, or that enforcement would contravene a strong public policy of the forum where the suit is brought. Id. (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15-16, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972)).

In its first assignment of error, Rising Resources contends it established that the forum selection clause was unreasonable and unjust. Rising Resources contends that it filed suit in St. Mary Parish due to the following facts it avers are uncontested: (1) the negotiations leading up to the contract took place in St. Mary Parish; (2) the contract at issue was signed in St. Mary Parish; (3) both Rising Resources and KIE have offices in St. Mary Parish; and (4) all of the scrap metal that was to be shipped in accordance with the parties’ contract was located in either St. Mary or Terrebonne Parishes. Rising Resources avers that none of the individual parties or witnesses involved have any connection to the State of Michigan, other than the fact that KIE’s corporate office is located there. Rising Resources contends that removing this case to Michigan would not only | inconvenience all of the relevant parties, but would cause an undue delay in litigation that would cause irreparable damage to Rising Resources’ business.

In determining whether enforcement of a forum-selection clause would be unreasonable and unjust, courts generally require the party seeking to avoid its enforcement to bear the heavy burden of showing that the chosen forum is seriously inconvenient. See M/S Bremen, 407 U.S. at 16-17, 92 S.Ct. at 1916-17. Since the claimed inconvenience is generally foreseeable at the time of contracting, it is incumbent on the party seeking to escape its contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that it will for all practical purposes be deprived of its day in court. M/S Bremen, 407 U.S. at 17-18, 92 S.Ct. at 1917. Absent that, there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold the party to his bargain. Id. Mere inconvenience or additional expense should not suffice as proof of hardship since these are burdens that were allocated by the parties’ private bargain. Vallejo Enterprise, LLC, 05-2649 at p. 6, 950 So.2d at 837.

As pointed out by the trial court, Rising Resources introduced no evidence at the trial on the exception. We also note that argument of counsel, no matter how artful, is not evidence. Sims v. BFI Waste Services, L.L.C., 06-1319, pp. 8-9, (La.App. 1 Cir. 5/16/07), 964 So.2d 998, 1004. Nevertheless, even considering all the facts that Rising Resources avers are undisputed, we cannot say that the district court erred in concluding that Rising Resources failed to meet its heavy burden in this case. Accordingly, assignment of error number one is without merit.

In its second assignment of error, Rising Resources contends that the district court erred in finding that enforcement of the forum-selection clause would not contravene public policy of this state. In support, Rising Resources cites Thompson Tree & Spraying Service, Inc. v. White-Spunner Constr., Inc., 10-1187 (La.App. 3 Cir. 6/1/11), 68 So.3d 1142, writ denied, 11-1417 (La.9/30/11), 71 So.3d 290, wherein the third circuit, on public policy grounds, |fideclined to enforce a forum selection clause. In so ruling, the court relied upon LSA-R.S. 51:1407(A), which provides, in pertinent part:

It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts.

The court found that although the referenced public policy language appears in the Louisiana Unfair Trade Practices Act (UTPA), the language utilized in the statute “indicates that the policy is far from being limited to the claims based on the UTPA.” Thompson Tree & Spraying Service, Inc., 10-1187 at p. 18, 68 So.3d at 1154. The third circuit also noted that LSA-C.C.P. art. 44(A) does not allow venue to “be waived prior to the institution of the action.” The court further declared that its prior statement in Calaban v. Haspel, 99-44 (La.App. 3 Cir. 5/5/99), 732 So.2d 796, that “forum selection clauses are generally enforceable” was inaccurate. Thompson Tree & Spraying Serv., Inc., 10-1187 at p. 22, 68 So.3d at 1156.

In contrast, this court has previously recognized a more limited view, although recognizing that “the public policy of this state does militate against the use of forum-selection clauses in employment contracts, La. R.S. 23:921(A)(2), and in consumer transactions and cases of unfair trade practices, La. R.S. 51:1407.” Vallejo Enterprise, L.L.C., 05-2649 at p. 6, 950 So.2d at 837. However, this court did not expand LSA-R.S. 51:1407(A) beyond its context of the UTPA and noted that plaintiff “pointed to no authority supporting a proposition that commercially sophisticated parties may not limit their disputes to any forum of their choosing.” Id. This court, finding no contravention of public policy, affirmed the trial court’s grant of an exception of improper venue in a suit brought by a Louisiana distributor against an Arizona manufacturer wherein a choice of law provision required that any suits be instituted in the state of Arizona. See also Dillon v. Bankers Ins. Co., 09-1121, 2010 WL 502838 (La.App. 1 Cir. 2/12/10) (unpublished opinion).

| ^Although the third circuit has interpreted the public policy declared in LSA-R.S. 51:1407(A) to extend beyond the context of the UTPA to all civil proceedings, we decline to do so and follow our prior holding in Vallejo Enterprise, L.L.C. Accordingly, Rising Resources has failed to show that enforcing the terms of the parties’ forum-selection clause would contravene a strong public policy. Therefore, assignment of error number two is without merit.

In light of the foregoing, we conclude that the trial court did not err in enforcing the forum-selection clause and in granting KIE’s declinatory exception raising the objection of improper venue. Louisiana Code of Civil Procedure article 932 sets forth the effect of sustaining a declinatory exception:

A. When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court; if the court finds, on sustaining the objection that service of citation on the defendant was not requested timely, it may either dismiss the action as to that defendant without prejudice or, on the additional finding that service could not have been timely requested, order that service be effected within a specified time.
B. If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action, claim, demand, issue, or theory subject to the exception shall be dismissed; except that if an action has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.

Because the declinatory exception raising the objection of improper venue was based on the forum-selection clause in the parties’ agreement, amending the petition cannot remove the grounds of objection. Accordingly, the trial court’s dismissal, without prejudice, was appropriate. See Vallejo Enterprise, LLC., 05-2649 at pp. 7-9, 950 So.2d at 838.

CONCLUSION

The judgment of the district court sustaining the declinatory exception raising the objection of improper venue is affirmed. All costs of this appeal are assigned to appellant, Rising Resources Control, Inc.

AFFIRMED.

      . Dennis McLain, the alleged ''owner/employee of KIE,” was also named a defendant. For clarity, we will refer to the defendants solely as KIE.

      . Rising Resources also obtained a Writ of Attachment, which was subsequently dissolved on October 1, 2010.


text:
    Beverly ARMAND v. LADY OF THE SEA GENERAL HOSPITAL.
    No. 2011 CA 1083.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.

      Rusty Savoie, Covington, LA, for Plaintiff-Appellant Beverly Armand.
    P. Scott Jolly, Calli M. Boudreaux, Watson, Blanche, Wilson & Posner, Baton Rouge, LA, for Defendant-Appellee Lady of the Sea General Hospital.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

|2Beverly Armand appeals a judgment sustaining a dilatory exception raising the objection of prematurity in favor of Lady of the Sea General Hospital and dismissing her suit without prejudice. For the following reasons, we affirm the judgment.

BACKGROUND

On February 26, 2010, Ms. Armand filed a petition against Lady of the Sea General Hospital (the hospital), alleging that she was injured on March 2, 2009, when she fell while exiting a whirlpool as part of her inpatient treatment at the hospital. She further claimed that the floor surrounding the whirlpool was wet and had no safety mats or other slip-resistant protection. The petition stated that the hospital failed to provide her with sufficient assistance exiting the whirlpool, making her use a step-stool to complete this process. Ms. Armand claimed damages from the hospital for the injuries she allegedly suffered as a result of this incident.

In response to the petition, the hospital filed a dilatory exception raising the objection of prematurity and a peremptory exception raising the objection of no right of action. Both exceptions were based on the hospital’s claimed status as a qualified health care provider entitled to the protections of the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq. One of those protections requires a medical malpractice claimant to submit all medical malpractice claims to a medical review panel, pursuant to LSA-R.S. 40:1299.47, before filing suit, which Ms. Armand had not done. The exceptions were set for hearing on August 6, 2010.

Ms. Armand then filed a supplemental petition, which deleted all references that might clearly identify her claim as medical malpractice, such as the statement that her injury was received as part of inpatient treatment at the hospital. Service of this petition was withheld at her request.

During the August 6 hearing, the hospital acknowledged that it had seen the supplemental petition, although it had not been served with it. In support of its exception, the hospital offered into evidence a photocopy of a certified copy of a form provided by the Patient’s Compensation Fund (PCF), showing that the hospital was |senrolled as a health care provider under the Act during the time when Ms. Armand’s accident occurred. When the PCF document was submitted, the judge asked Ms. Armand’s counsel, “Is there any objection?” The response was, “No objection.” The judge then admitted the PCF document into evidence, and it was marked and filed into the record by the clerk. After hearing arguments from counsel for both parties, the court denied the hospital’s exceptions on the basis that the petition, as supplemented, contained no allegations related to medical malpractice.

The hospital then refiled its dilatory exception raising the objection of prematurity. At a hearing on January 7, 2011, the hospital offered the testimony of Jennifer Guidry, the physical therapist who was providing Ms. Armand with wound therapy in the hospital’s whirlpool when the accident occurred. In connection with her testimony, the hospital also offered portions of Ms. Armand’s medical records on which the physical therapist had noted her account of the accident. The hospital also re-submitted a photocopy of the PCF document. At this point, Ms. Armand’s counsel vigorously objected to its admission, because it was not an original document. Counsel for the hospital then offered the entire record for consideration by the court, because the PCF document was already in the record from the previous hearing. After considerable argument from both parties on the issue of whether the photocopy of the PCF document should be admitted into evidence, the judge first sustained the objection, but later recessed court to examine the pertinent evidence law and jurisprudence. After reconsideration of the decision in the light of the law and jurisprudence, the judge determined that he could rely on the record, which included the enrollment information in the PCF document, and could also consider the other evidence submitted by the hospital on the issue of medical malpractice. On the basis of the evidence submitted in connection with both hearings, the judge sustained the hospital’s exception of prematurity. The judgment, which was signed on January 21, 2011, dismissed Ms. Armand’s petition without prejudice. This appeal followed.

14APPLICABLE LAW

Under the Louisiana Medical Malpractice Act (the Act), all medical malpractice claims against qualified health care providers must be submitted to a medical review panel for consideration. See LSA-R.S. 40:1299.47(A)(l)(a). No civil action against a qualified health care provider or its insurer may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to the Act. See LSA-R.S. 40:1299.47(B)(l)(a)(i). A request for a medical review panel is a prerequisite to and not the equivalent of a suit for medical malpractice. Houghton v. Our Lady of the Lake Hosp., Inc., 03-0135 (La.App. 1st Cir.7/16/03), 859 So.2d 103, 105-06.

Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the progress of the action rather than to defeat it. LSA-C.C.P. art. 923. It must be pleaded prior to or in the answer. LSA-C.C.P. art. 928; Deutsche Bank Nat’l Trust Co. v. Thomas, 10-1453 (La.App. 1st Cir.2/11/11), 57 So.3d 1185, 1187. An action is premature if it is brought before the right to enforce the claim sued on has accrued. See LSA-C.C.P. art. 423. The objection of prematurity raises the issue of whether the judicial cause of action has yet to come into existence because some prerequisite condition has not been fulfilled. Bridges v. Smith, 01-2166 (La.App. 1st Cir.9/27/02), 832 So.2d 307, 310, writ denied, 02-2951 (La.2/14/03), 836 So.2d 121. The objection contemplates that the action was brought prior to some procedure or assigned time, Rand is usually used in cases where the applicable law or contract has provided a procedure for one aggrieved by a decision to seek relief before resorting to judicial action. Plaisance v. Davis, 03-0767 (La.App. 1st Cir.11/7/03), 868 So.2d 711, 716, writ denied, 03-3362 (La.2/13/04), 867 So.2d 699. The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider. See Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00), 758 So.2d 116, 119. If a lawsuit against a health care provider covered by the Act has been commenced in a court and the complaint has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the claimant’s suit must be dismissed. Dunn v. Bryant, 96-1765 (La.App. 1st Cir.9/19/97), 701 So.2d 696, 699, writ denied, 97-3046 (La.2/13/98), 709 So.2d 752.

The burden is on a defendant to prove prematurity and initial immunity from suit as a qualified health care provider under the Act. Id. The defendant must also show that it is entitled to a medical review panel, because the allegations fall within the Act. Hamilton v. Baton Rouge Health Care, 09-849 (La.App. 1st Cir.12/08/10), 52 So.3d 330, 333. The Act applies only to “malpractice”; all other tort liability on the part of a qualified health care provider is governed by general tort law. Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, 315.

Because authentication of evidence is a condition precedent to admissibility, an exhibit that is not authenticated does not constitute competent evidence. See LSA-C.E. art. 901. “Authentication” is a process whereby something is shown to be what it purports to be. Newpark Resources, Inc. v. Marsh & McLennan of Louisiana, Inc., 96-0935 (La.App. 1st Cir.2/14/97), 691 So.2d 208, 211, writ denied, 97-0691 (La.4/25/97), 692 So.2d 1094. Evidence must either be authenticated as provided in Article 901, or it must be self-authenticating. See LSA-C.E. arts. 902 and 904; Price v. Roy O. Martin Lumber Co., 04-0227 (La.App. 1st Cir.4/27/05), 915 So.2d 816, 822, writ denied, 05-1390 (La.1/27/06), 922 So.2d 543.

|fiTo preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection. Chauvin v. Chauvin, 10-1055 (La.App. 1st Cir.10/29/10), 49 So.3d 565, 571. Moreover, a party’s failure to object to inadmissible evidence when it is admitted constitutes a waiver of the objection, and the trial court does not err in considering such evidence. See Kirby v. Field, 04-1898 (La.App. 1st Cir.9/23/05), 923 So.2d 131, 137 n. 8, writ denied, 05-2467 (La.3/24/06), 925 So.2d 1230; Nitro Gaming, Inc. v. D.I. Foods, Inc., 34,301 (La.App. 2nd Cir.11/1/00), 779 So.2d 817, 821.

ANALYSIS

Ms. Armand contends on appeal that the trial court erred in admitting improper evidence, namely, the photocopy of a certified copy of the PCF document, and in relying on that evidence in reaching its decision. According to LSA-R.S. 40:1299.47(B)(l)(a)(ii), a certificate of enrollment issued by the PCF board shall be admitted in evidence. Louisiana Code of Evidence article 902(2)(b) requires that m order for a document of a Louisiana state agency, board, or department to be self-authenticating, and thus admissible under Article 901, it must be certified as being the original by an officer or employee who is authorized to make such a certification. Article 904 allows a purported copy of such a document to also be deemed authentic when certified as true or correct by a person authorized to make such a certification. Ms. Armand argues that, because the PCF document admitted at the first hearing was merely a photocopy of a certified copy, it could not be deemed authentic and should not have been admitted. To that extent, Ms. Armand is correct.

However, when the photocopy of the certified copy of the PCF document was submitted into evidence during the August 6, 2010 hearing, counsel for Ms. Armand did not object to its introduction. Because the PCF document was admitted without a contemporaneous objection, the court did not err in allowing it into evidence. The certificate is competent evidence to establish a prima facie case for the applicability of the Act regarding claims against the party identified on the certificate. See Roark v. Liberty Healthcare Systems, LLC, 44,913 (La.App.2d Cir.12/9/09), 26 So.3d 968, 973-74, writ denied, 10-0390 (La.4/23/10), 34 So.3d 265. In addition, the court correctly concluded at the second hearing that it could consider the PCF document in ruling on the hospital’s exception of prematurity, even though that document was in the record as the result of its admission during the prior hearing. The Louisiana Supreme Court has ruled that the trial judge may take judicial notice of the record at an earlier proceeding before him in the same case, pursuant to LSA-C.E. art. 201(A) and (B)(2). State v. Valentine, 397 So.2d 1299, 1300 (La.1981); Lewis v. State Through Dept. of Pub. Safety and Corr., 602 So.2d 68, 73 n. 3 (La.App. 1st Cir.), writ denied, 604 So.2d 1312 (La.1992); Stanley v. Nicosia, 09-191 (La.App. 5th Cir.9/29/09), 19 So.3d 56, 58; see also State v. Batiste, 96-0526 (La.App. 3rd Cir.12/11/96), 687 So.2d 499, 503, writ denied, 97-0174 (La.6/30/97), 696 So.2d 1003, reconsideration denied, 97-0174 (La.9/26/97), 701 So.2d 970 (court may also take judicial notice of a prior ruling in the case before it, whether evidenced by the court’s official minutes concerning earlier proceedings in the same case, a transcript, or a written judgment). The minutes and the transcript of the August 6 hearing reflect that “Exhibit Lady of the Sea (A),” which we have referred to as the PCF document, was filed into evidence. Therefore, because the document was already part of the record and any objection to its admissibility had been waived, the trial court did not err in considering this document when ruling on the hospital’s exception raising the objection of prematurity.

Ms. Armand also argues that the trial court erred in allowing the hospital to reassert its exceptions. No authority was cited in support of this contention, nor has our research revealed any such authority. Louisiana Code of Civil Procedure article 928 states that the dilatory exception must be pleaded prior to or in the answer and prior to or along with the filing of any pleading seeking any relief other than certain enumerated instances not applicable in this case. The record shows that the hospital filed all of its exceptions and motions together in one pleading and filed them prior to filing an answer to the petition. This was true of the original filing and the refiling of its dilatory exception raising the objection of prematurity. Therefore, the trial court did not err in | sallowing the hospital to refile its dilatory exception.

Finally, Ms. Armand claims the court erred in sustaining the exception, because her accident was not the result of medical malpractice, but was within the ambit of general tort law. She claims she slipped and fell on a wet floor and that the hospital’s liability is based on an unsafe condition existing at the facility and a lack of proper safety measures. In support of this argument, she cites a number of cases in which the courts have clarified that not every activity in a hospital constitutes medical malpractice.

In the Coleman case, the Louisiana Supreme Court set out six factors to be evaluated when considering whether an accident qualifies as medical malpractice. Coleman, 813 So.2d at 315-16. These factors are: (1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities that a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional. Id.

The evidence presented by the hospital through the testimony of Ms. Guidry established that Ms. Armand was undergoing wound care in the whirlpool; this treatment had been ordered by her physician and was being administered pursuant to those orders by Ms. Guidry and a technician who assisted her. The procedure required the use of a hydraulic chair lift in order to move the patient into and out of the whirlpool. The lift was designed to allow the patient to enter and exit it from the left of the whirlpool, where there was a drain and non-slip mats. Ms. Armand expressed a fear of heights, but eventually was lifted into the whirlpool using the hydraulic chair and spent the allotted time for her treatment. However, when being lifted out, Ms. Armand tried to get out of the hydraulic chair on the right side of the whirlpool before she was fully lifted. Neither the chair nor that side of the pool were designed for such an exit, and Ms. Guidry and the technician were positioned to assist her on the left side. When | flthey realized what Ms. Armand was attempting to do, Ms. Guidry and the technician told her to stay in the chair to complete the process safely, but she threw her legs over the right side of the chair and tried to get out on that side of the whirlpool. Ms. Guidry and the technician ran to the right side to help her when they realized what she was doing, but they were unable to prevent her from slipping and falling. Ms. Guidry was still trying to physically assist Ms. Armand when she fell.

Having evaluated this evidence in the light of the Coleman factors, we conclude the trial court did not err in determining that Ms. Armand’s accident was alleged to be the result of medical malpractice, and thus fell within the parameters of the Act. The whirlpool use was “treatment related,” in that it was ordered by her physician for wound care and was being administered by a trained physical therapist. The question of whether the therapist’s or the hospital’s activities at the time constituted a dereliction of duty or a breach of the standard of care is not a fact that a lay person could adduce. Therefore, expert testimony will be necessary to establish this element of Ms. Armand’s case. The incident occurred in the context of a physician/patient relationship, in that the treatment was ordered by Ms. Armand’s physician. Moreover, it certainly fell within the scope of activities that a hospital is licensed to perform in the treatment of its patients. The injury would not have occurred if Ms. Armand had not sought treatment at the hospital, and the accident was clearly unintentional. Thus, with the possible exception of factor three, this incident meets the Coleman criteria and falls within the ambit of the Act. Therefore, the trial court did not err in sustaining the exception of prematurity and requiring Ms. Armand to present her claims to a medical review panel before filing her suit.

[ inCONCLUSION

For the above reasons, we affirm the judgment of the trial court and assess all costs of this appeal to Ms. Armand.

AFFIRMED.

      . A number of additional exceptions and a motion to strike the supplemental petition were also filed; most of the exceptions and the motion were later dismissed by the hospital. Its peremptory exception raising the objection of no right of action was denied after the hearing on its exception of prematurity.

      . Louisiana Revised Statutes 40:1299.41 through 1299.48.

      . "Malpractice” is defined by LSA-R.S. 40:1299.41 (A)( 13), in pertinent part, as follows:
      "Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions ... in the training or supervision of health care providers....
      “Health care” is further defined in LSA-R.S. 40:1299.41(A)(9), in pertinent part, as follows:
      "Health care” means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement....

      . Ms. Armand's original petition was filed within the applicable one-year prescriptive period, thereby interrupting prescription. Accordingly, it is as if the one-year period had not commenced to run, and following the dismissal of her suit without prejudice, Ms. Armand can still bring her claim before a medical review panel and then refile her suit. See Tranum v. Hebert, 581 So.2d 1023, 1030-31 (La.App. 1st Cir.), writ denied, 584 So.2d 1169 (La.1991).