author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Dryefus MALBROUGH.
    No. 11-1241.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 2012.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, J.N. Prather, Jr., Assistant District Attorney, Fifteenth Judicial District Court, Lafayette, LA, for Appellee, State of Louisiana.
    Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Dryefus Malbrough.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 Defendant, Dryefus Malbrough, along with three co-defendants, Terrance Sine-gal, Lorenzo Angelle, and Courtney Romero, robbed the victim, Nicholas Carter, of $289.00. Defendant was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. Following a jury trial, Defendant was found guilty of the responsive verdict, simple robbery. He was sentenced to serve seven years at hard labor, with credit for time served.

Defendant is now before this court on appeal, challenging his conviction in four assignments of error. We affirm the defendant’s conviction, but remand the matter to the trial court with instructions to comply with the notification requirements of La.Code Crim.P. art. 930.8.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There is one error patent.

The record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. The trial court is directed to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record that he received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, O5-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR

Defendant argues that “[t]hese three assignments of error are linked together and when jointly considered establish insufficient proof to convict the defendant beyond a reasonable doubt.”

|2When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.

State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, these assignments of error are addressed first in the event Defendant is entitled to an acquittal.

The analysis for a claim of insufficient evidence is well-settled:

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86.

Defendant was convicted of simple robbery, which is defined in La.R.S. 14:65(A) 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.” Defendant does not contest whether a robbery took place on the evening of December 15, 2008. He challenges only his identity as established by co-defendants Lorenzo Angelle and Courtney Romero.

Impermissible Hearsay

Defendant maintains that “the trial court allowed the introduction of impermissible hearsay by allowing both [Officers Glenn Landry and Monika Porter] to swear to the jury what Courtney Romero and Lorenzo Angelle saw and 13did despite untold objections by defense counsel” in order “to bolster the testimony of two blemished witnesses who actually committed the crimes.” We note that Defendant’s argument does not identify any places or pages in the record where hearsay objections were made during the officers’ testimony and/or where the trial court ruled on the objections. Uniform Rules — Courts of Appeal, Rule 2 — 12.4 provides in pertinent part:

The argument on a specification or assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. The court may disregard the argument on that error in the event suitable reference to the record is not made.

Accordingly, we could disregard Defendant’s argument as to assignment of error number three.

Moreover, even if the record revealed that Defendant raised a hearsay objection to the testimony of either officer, and the testimony was impermissibly admitted, we find that the error was harmless. Both Romero and Angelle testified at trial and were subject to cross-examination. Also, the evidence was cumulative with the other evidence presented, which is discussed below in greater detail. See State v. Perkins, 97-1119 (La.App. 3 Cir. 6/17/98), 716 So.2d 120. There is no merit to assignment of error number three.

Statements of Lorenzo Angelle and Courtney Romero

Defendant maintains that the trial court improperly allowed the introduction of Romero and Angelle’s written statements which, in effect, “corroborated” Officer Landry and Officer Porter’s versions of the events.

During the testimony of Officer Porter, the State moved to introduce the statements of Romero and Angelle, which were prepared as part of her report at the time the offense was committed. Counsel for Sinegal objected on the basis that introduction of the statements should be withheld until the respective individuals ^testified at trial. The objection was overruled, and Defendant’s counsel concurred in Sinegal’s objection.

The statements were then disseminated to the jury, and Sinegal’s counsel reiterated his objection to the introduction of the statements. Defendant’s counsel stated:

MR. ALONZO: Judge, I’d like to get something on the record before that goes to the jury. I’d like to put something on the record on behalf — in regards to those documents before they go to the jury.
THE COURT: Gentlemen, I’ll let you do that and those are statement from co-defendants.
MR. ALONZO: Yes, Judge, I just wanted to note for the record our prior objections and I’d like to just state for the record, Judge, we have consistently objected today to the statements that have come in on the co-defendants because they’ve already pled and that — I understand the Court’s position on that. But now, Judge, on what just occurred for the record was that the co-defendants written statements prior to their testimony was handed to the jury, the jury read it for approximately twenty-five minutes. Judge, that information is gone to the jury without our chance to cross-examine the witness. It’s done. There’s no way we can get that information back. The jury now has it. We object to that. Based upon that I think that’s going to inherently prejudice the jury and I think it’s something I just wanted to put on the record.
MR. ALONZO: Judge, let me note also one of the basis for my objection for the record, Your Honor, is that the introduction of those statements clearly violates the best evidence rules. Those witnesses were here to testify. We could have had them testify live. As it was their statements went in to the jury and that was their testimony.
THE COURT: I’m sure they’re going to testify.

On appeal, Defendant does not challenge the introduction of the statements based on the best evidence rule but instead, maintains that the statements were hearsay evidence.

|fiThe State argues that the statements were offered under the hearsay exception of “explanation of conduct” concerning information received by the officer which led to the ultimate arrest of the accused. The State adds that an out-of-court statement is not hearsay if it was introduced to explain why a person took a particular course of action but not to prove the truth of the matter asserted. In support of its argument, the State refers to State v. Turner, 392 So.2d 436 (La.1980), wherein the defendant objected to the testimony of a criminal investigator regarding his reference to a report of possible criminal activity involving the defendant. The court found that the testimony was not offered to prove the truth of information received but to show why the investigator ordered a search.

The issue at hand, however, is the admissibility of Romero and Angelle’s statements, not the testimony of the officers referring to a report or tip leading to their subsequent conduct. The record reflects that both Romero and Angelle testified at trial subsequent to the introduction of their statements. Defendant was afforded the opportunity to cross-examine these witnesses regarding the content of their respective statements. Accordingly, Defendant has not shown that the statements are hearsay evidence. La.Code Evid. art. 801(D)(1). Also, Defendant has not alleged or shown that he suffered any prejudice by the introduction of the statements at the time of Officer Porter’s testimony rather than introducing them at the time Romero and Angelle testified.

Sufficiency of Evidence

Defendant concludes that the jury relied on improper hearsay evidence in determining his guilt and that absent the inadmissible evidence, the evidence was insufficient to convict him. Defendant, however, has not shown that the trial court fallowed improper hearsay evidence or that the introduction of hearsay evidence played a significant role in identifying him as a perpetrator in the offense.

Even if the testimony of the officers and Romero and Angelle’s statements had been excluded at trial, the testimony of Romero and Angelle identified Defendant as one of the masked perpetrators, a man with whom they were both acquainted pri- or to the offense and who was involved in the plan and eventual robbery of the victim. Romero stated that she was at An-gelle’s house when Angelle received a phone call from Defendant. Romero was fifteen years old at that time and was living with Angelle. Defendant indicated that he wanted to “hit a lick” or rob someone. Soon thereafter, Romero and An-gelle met up with Defendant and co-defendant Terrance Sinegal, a/k/a “Trill.” Romero then called the victim and arranged to meet him at her cousin’s house to purchase Ecstasy pills for her cousin. Romero led the victim to believe that after taking the pills inside to her cousin, she would leave with the victim.

To get the pills and money from the victim, Romero believed that the three men planned to strong-arm the victim. Romero called the victim to ascertain his whereabouts, and he indicated he was about to arrive. The three men went to the back of the house. When the victim pulled up, Romero walked to his vehicle, opened the door, put her cigarettes and belongings on the seat, and asked him if he had the pills. The victim then got out of the vehicle and reached under his seat. Romero removed the keys from the ignition and ran under the carport. She told the three men that she had the keys, and they ran up to the vehicle. Defendant and Sinegal approached the driver’s door wearing black hoodies and bandanas around their faces. When the victim saw them, he jumped back into the vehicle. Defendant and Sinegal put their guns in the victim’s face and ordered him to give them the money and pills. Meanwhile, Angelle entered the vehicle on the |7passenger side and went through the victim’s console to see what he could find. According to Romero, the victim started throwing money. Romero returned the keys, and the victim drove away after the men instructed him to leave.

Afterwards, Romero and Angelle went to the home of Mennifer Sinegal, Defendant’s girlfriend, where they met with Defendant and Sinegal to split the money. Of the $289.00 stolen, Angelle received $89.00, and Defendant and Sinegal each got $100.00. Romero and Angelle then returned to Angelle’s house and went to bed without changing clothes.

About thirty to forty-five minutes later, the police arrived at Angelle’s house. At first, Romero denied having any knowledge of the offense. After the police brought Romero to the station and contacted her mother, Romero gave a written statement. Romero was prosecuted through the juvenile system for her involvement in the offense. She admitted to the charge, principal to armed robbery, served three months in juvenile detention, and was placed in drug court where she was in treatment for nine months. Romero stated that she successfully completed the program and was clean at trial.

On cross-examination, Romero testified that she was eleven years old when she started using drugs. The victim began supplying her with drugs, including Ecstasy, cocaine, and marijuana, when she was twelve-to-thirteen years old. Prior to her relationship with Angelle, she had a sexual relationship with the victim. She used her prior relationship with the victim to lure him to the location of the robbery, with the understanding that she would leave with him to have sex. Romero decided to come clean about the robbery when she learned that the victim had given her cellphone number to the police. Lastly, Romero testified that Angelle was the father of her child.

IsAngelle also testified that he and Romero were living together at the time of the offense. They received a phone call from Defendant who wanted to “hit a lick,” meaning he was broke and wanted money. Angelle and Romero then met up with Defendant and Sinegal at a Shell station where they came up with a plan to rob the victim. Romero would remove the keys from the victim’s car, and the three men would confront him and take everything he had. Angelle stated that the use of weapons was not part of the plan.

When they arrived at the location, An-gelle, Defendant, and Sinegal hid while Romero waited for the victim in the street. When the victim drove up, Romero walked to his vehicle and removed the keys. Next, Defendant and Sinegal ran from behind a tree wearing black hoodies and bandanas covering their noses and mouths. They were armed with guns. Defendant and Sinegal pointed their guns in the victim’s face and yelled “give it up.” Meanwhile, Angelle searched the vehicle. The victim gave the men $289 and a few Ecstasy pills. They left the scene and went to Mennifer’s house, where they split the money and pills.

Afterwards, Angelle and Romero went back to his house and went to sleep. About an hour later, the police arrived. Angelle told the police that he had been sleeping since 8:30 p.m. and knew nothing about the offense. The police brought him and Romero to the police station. Once he arrived at the station, Angelle decided to cooperate and gave a written statement admitting to participation in the robbery. Angelle identified Defendant and Sinegal in open court as the two masked men who participated in the robbery. Angelle was charged with principal to armed robbery and pled guilty to the lesser charge of simple robbery. At the time of trial, An-gelle had not yet been sentenced.

|9The State stresses that the testimony and statements of the victim also implicated Defendant in the offense. Further, the State maintains that Defendant tried to get the victim to change his original statement.'

The victim testified at trial that he did not know the two armed men. Also, he did not identify Defendant in his first statement taken shortly after the offense. About a year after the offense, the victim implicated Defendant in a second statement taken by investigator, Roy Given, hired by counsel for Sinegal. The following colloquy took place:

RG: In your own words, could you explain to me what happened NC: Courtney Romero called me for a ride. I went to pick her up she pulled my keys out my ignition and two men came up with guns and demanded money on the corner of Arthur and St. Antoine
RG: How much money did they take
NC: Okay. Was any of the.name the men that were involved
NC: Dryefus, Lorenzo but Lorenzo didn’t have a gun and I couldn’t see the other man but he was bigger
RG: Was any of these men Terrance Sinegal
NC: No
RG: Can you explain . give me a physical description of each one of these men that held you up
NC: All I know is .... one had on no mask and I coulda [sic] see that was Lorenzo and the other one had on a mask and he had dreads and the other one had on a mask but he was bigger, he was big
RG: You are positive that none of them was Terrance
NC: Yeah, positive
RG: Is there anything else you would like to add
NC: No sir

| inOne week before trial, the victim, incarcerated for an unrelated offense, received a verbal message from Defendant, also serving time in the same facility, that he wanted to talk to the victim. The victim was presented with a handwritten statement that he presumed was written by Defendant. The statement indicated that the victim wanted to dismiss the charges against Defendant. The statement was dated March 6, 2011, and reads:

I Nick Carter on the above date and time chose not to pursue the charges of armed robbery on Mr. Dryefus Malbor-ough [sic]. I Nick Carter was neither forced nor threatened to write this affidavit. The altercation between Mr. Malborough [sic] and I Nick Carter was just a misunderstanding and I Nick Carter again do not wish to pursue the charges on Mr. Malborough [sic]. Thank you for all of your help and concerns.

The victim signed the statement, his third and final statement regarding the offense. The victim denied being threatened by Defendant to sign the statement. He reasserted that he did not know Defendant prior to the offense. Lastly, the victim testified that he was on probation at the time of trial as the result of pleading guilty to attempted possession with intent to distribute cocaine.

On cross-examination, the victim maintained that drugs were not taken from him during the robbery, and he was not in possession of drugs at the time of the offense. When asked if he had ever provided drugs to Romero, the victim admitted he had “smoked” with her. He denied ever giving Romero Ecstasy pills.

The reason the victim gave his second statement was to prove that the physical description of the perpetrator believed to be Terrance Sinegal did not fit Sinegal’s physical description. According to the victim, the perpetrator was big. Additionally, the victim recalled telling the prosecutor on October 26, 2010, that Sinegal had nothing to do with the offense. Again, the victim asserted that no one had threatened him.

lT1On redirect examination, the victim admitted that about a year after the offense, he spoke with Sinegal’s mother, who asked him to help her out. The victim then went to his attorney, who subsequently sent a private investigator to take his statement. The victim denied implicating Defendant in his statement, because he did not know Defendant at the time. The victim was then shown a copy of the statement wherein he had identified Defendant by name as a participant in the offense. The victim maintained that he could not see the faces of the men but learned that Defendant was there and had put a gun in his face.

Regarding his third statement, the victim stated he was taken from “the yard” to Defendant’s pod where Defendant gave him a document to sign. The victim testified that the document had already been written when it was given to him to sign, and he did not compose the language in the statement.

Although there are discrepancies in the victim’s testimony and statements, the victim implicated Defendant in the offense and never retracted his identification of Defendant as one of the perpetrators. Considering the testimony of co-defendants Angelle and Romero and that of the victim, we find the evidence was sufficient to prove that Defendant was a participant in the crime. Defendant does not challenge any elements of the offense other than his identity. Accordingly, there is no merit in assignment of error number two.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant maintains that a review of the record reveals no reference or testimony as to the venue of where the offense of armed robbery occurred. As such, Defendant contends that the prosecution failed to prove the venue of the instant offense.

|12In support of his argument, Defendant refers to State v. Beard, 249 La. 811, 191 So.2d 631, 632 (1966) (citations and footnote omitted), wherein the court stated:

It is fundamental under our law that the State in all criminal trials allege and prove the venue of the offense. Section 9 of Article 1 of the Constitution, as amended by Act 528 of 1962, declares in part: ‘ * * * all trials shall take place in the parish in which the offense is committed, unless the venue be changed * * * ’ Also the jurisprudence of this Court is now firmly settled that, since the question of venue in a criminal case is one of fact, which does not pertain to the guilt or innocence of the accused, it may be raised In limine and, when it is, there is no constitutional prohibition precluding either the trial judge or this Court from deciding the issue. Indeed, these cases hold that the defendant in a criminal prosecution has the right to have the question of venue decided before he is compelled to go to trial.

We note that the bill of information filed against Defendant indicates that the offense occurred in Lafayette Parish. Defendant did not object to the bill of information or challenge the venue as stated in the bill of information in a pre-trial motion to quash.

In State v. Moss, 08-1079, pp. 13-14 (La.App. 4 Cir. 7/22/09), 17 So.3d 441, 449-50, writ denied, 09-1895 (La.4/9/10), 31 So.3d 382 (footnote omitted), the court explained:

La. Const. Art. 1 § 16 guarantees the right to be tried in the parish where the offense occurred, unless venue is changed in accordance with law. The Louisiana legislature has codified this state constitutional guarantee in the Title XIX of the Louisiana Code of Criminal Procedure. La.C.Cr.P. art. 611(A) provides in pertinent part: “[a]ll trials shall take place in the parish where the offense has been committed.” La. C.Cr.P. art. 615 specifies the procedural device for invoking that right:
Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

| ^fEm/phasis added. See also State v. Pierre, 2004-0010, p. 3 (La.App. 4 Cir. 2/25/04), 869 So.2d 246, 248 (failure to file a pre trial motion to quash prohibits appellate review venue issue).

Moss cites State v. Jackson, 308 So.2d 265 (La.1975) for the proposition that a challenge to the sufficiency of proof of venue may be raised by a Motion for Directed verdict. Jackson addressed a pre-1988 version of La.C.Cr.P. art. 615. The law was changed by the 1988 amendment. Moss failed to challenge venue in a pre-trial motion to quash. Accordingly, this issue has not been preserved for appellate review.

Likewise, we find that Defendant herein did not preserve his challenge of venue for appellate review.

DISPOSITION

Defendant’s conviction is affirmed; this matter is remanded to the trial court with instructions to comply with the notification requirements of La.Code Crim.P. art. 930.8.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Victoria L. BURNS v. James M. BURNS.
    No. 12-128.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 2012.

      Laura L. Davenport, Lafayette, LA, for Plaintiff/Appellee, Victoria L. Burns.
    J. Marshall Montgomery, Lafayette, LA, for Defendant/Appellant, James M. Burns.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

REACTS AND PROCEDURAL HISTORY

James M. Burns and Victoria L. Burns were divorced in a Massachusetts family court on March 3, 2010, dissolving their March 23, 1991 marriage. There were four children born of the marriage, three of whom were minors at the time of divorce.

A notarized “Agreement” setting forth stipulated terms and conditions governing child custody, child support and spousal support was appended to the Judgment of Divorce. The Agreement set forth that each party was represented by counsel in its creation, had the opportunity for full disclosure, and understood that it would be enforceable as if a judgment had been entered.

Following the divorce, Victoria became a resident of Louisiana. The children resided with her. James became a resident of Florida. On December 7, 2010, the Agreement was registered in the State of Louisiana. Victoria also filed a Rule for Sole Custody of the minor children as well as a Motion for Contempt against James for underpayment of alimony.

The parties stipulated that in the spring of 2011, Victoria began living with her fiancé, Chad Newgebaver, until his sudden death a few months later. Due to this cohabitation, James filed a Motion to Terminate Spousal Support on April 13, 2011. James argues La.Civ.Code art. 115 applied, which provides for the extinguishment of spousal support upon a finding of cohabitation. James argued the provision for Louisiana jurisdiction triggered the application of Louisiana law calling for the extinguishment of spousal support based on Victoria’s cohabitation. Victoria countered that the Agreement clearly provides for the modification of spousal support only upon death or remarriage, both of which have not occurred.

IsOn October 7, 2011, the trial court issued a ruling on the Rule for Sole Custody and the various motions involving spousal support. The trial court granted Victoria sole custody of two of the three minor children. This portion of the trial court’s judgment was not appealed.

As to James’ request for termination of spousal support, the trial court found the fact that Victoria cohabitated with another man in the manner of married persons for a few months in the spring of 2011 did not, under the terms of the Agreement, terminate all spousal support. The fact that the issues between the parties were being litigated in Louisiana did not require application of all Louisiana law when the contract is clear and unambiguous. The trial court found the Agreement was not ambiguous, was not against public policy, was the result of the exchange of mutual considerations, and should be enforced as written, which allowed for modification of spousal support only upon death or remarriage. The trial court also held the Agreement provided that the alimony payments made by James should be based on gross commissions from his employment rather than net commissions.

James filed this appeal from the trial court’s judgment, asserting the following assignments of error:

(1) the trial court erred in denying James’ Motion to Terminate Spousal Support; and
(2) the trial court erred in finding that alimony payments should be based on gross commissions rather than net commissions.

ANALYSIS

A trial court’s determination regarding final periodic support is subject to the abuse of discretion standard of review. January v. January, 03-1578 (La.App. 3 Cir. 4/7/04), 876 So.2d 98.

I. Termination of Spousal Support.

14In his first assignment of error, James contends Victoria’s cohabitation with her then fiancé required the termination of spousal support under Louisiana law. Victoria argued a reading of the Agreement indicates it specifically provides that Massachusetts law controls:

(11) This Agreement has been executed and completed in Massachusetts and is a Massachusetts contract, and all matters affecting the interpretation and the rights of the Parties hereunder, shall be governed by the laws of the Commonwealth of Massachusetts.

However, James points out that another section of the Agreement provides that Louisiana law is to be applied to enforcement and/or modification:

(18) The Parties shall cooperate in having the State of Louisiana adopt this Agreement as a Foreign Judgment so that it may be enforced and or modified in the State of Louisiana.

James argues because the Agreement provides that it may be “enforced or modified in the State of Louisiana,” it is clear that the application of Louisiana law calling for the extinguishment of alimony upon cohabitation (La.Civ.Code art. 115) is triggered. The trial court entertained this argument below, and determined that simply because the issues between the parties are being litigated in Louisiana does not require application of all Louisiana law when the contract between the parties is clear and unambiguous. We agree.

The Agreement herein was a mutually agreed upon contract and is to be interpreted according to contract law. As Victoria notes, the Agreement clearly and unambiguously provides only two instances which allow for modification of alimony— death or remarriage. Neither of those instances occurred herein.

We also note the trial court emphasized the contract should be enforced as written, because “[t]o do otherwise would invalidate a part of the consideration obtained by one party without taking into account the possible quid pro quo for that consideration.” We agree with the trial court, and believed the contract should be interpreted in accordance with the terms mutually entered into by the parties.

|sJames also argues, as he did below, that to enforce the Agreement as written is contra bonos mores, a violation of the public policy of Louisiana. The trial court in dismissing this argument, cited this Court’s opinion in Romero v. Romero, 509 So.2d 681 (La.App. 3 Cir.1987), writ not considered, 512 So.2d 427 (La.1987), wherein we reversed a trial court’s judgment terminating contractual alimony based upon the wife living in open concubinage. In reversing the trial court, we stated:

One reason given by the trial court for its decision was that a construction of the contract that would require a man to pay alimony to his ex-wife while she was living in open concubinage would render the contract contra bonos mores. We disagree. Open concubinage is contra bonos mores, but payment of alimony is not. Here we are dealing with a contract the object of which is the payment of alimony after divorce.... The contract does not call on either party to do anything illegal or immoral. Therefore, the trial court’s conclusion that the contract was contra bonos mores is clearly wrong.

Id. at 683

We agree with the decision in Romero, that while open concubinage may be contra bonos mores, the payment of alimony under a contract is not. See also Becker v. Becker, 94-1224 (La.App. 1 Cir. 5/5/95), 654 So.2d 1365, 1369, wherein the court found “[t]he law does not equate marriage and concubinage in any legal sense” and found no merit in the argument that the “resolutory condition of remarriage [was] fulfilled” by the choice to live in open concubinage.

Likewise, in Crumling v. Crumling, 628 So.2d 1194 (La.App. 3 Cir.1993), the parties entered into a stipulation for payment of alimony which was incorporated by reference into the judgment of divorce. Later, Mr. Crumling brought a rule to have the alimony payments reduced, alleging several changes in circumstances pursuant to La.Civ.Code art. 112. This court noted that in Romero, the stipulations for alimony “until death or remarriage” barred alimony modifications on the basis of open concubinage, because it involved alimony stipulations containing explicit guidance as to the duration of alimony payments.

[fijames argues La.Civ.Code art. 115 as presently written did not become law until after the effective date of the contract at issue in Romero, thus it does not apply here. However, the prior law in Romero was La.Civ.Code art. 160 A(4) (emphasis added) which provided that “[p]ermanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage.” Thus, the same prohibition existed at that time as it does now, it was merely previously styled open concubinage as opposed to the present styling of cohabitation in the manner of married persons. This change in wording provides no substantive change. This court’s ruling in Romero that the stipulations for alimony “until death or remarriage” bars any alimony modifications on the basis of one of the parties living with another person is still the law of this circuit.

II. Calculation of Spousal Support.

James also assigns as error the trial court’s determination that the spousal support calculation is to be based on gross rather than net commissions. We find the trial court entertained the same arguments below that are presented on appeal, and we adopt the trial court’s well-reasoned analysis as our own:

James M. Burns has paid his support based on 33% of his net rather than gross commissions. This method of determining his obligation has triggered Victoria L. Burns’ motion for contempt for underpayment. To resolve this issue, the court is called upon to interpret the Agreement.
Exhibit B of the Agreement provides for the payment of alimony from commission earnings.
2. In addition to child support amount and subject to provisions of Paragraph 4 below, the Husband shall pay to the Wife, as alimony, 33% of any commissions earned through his employment at Oracle or other employment. Alimony derived from commission payments shall be paid within 10 days of the close of each quarter (i.e. March 31, June 30, September 30 and December 31).
The court is of the opinion that the provision is clear. The Agreement provides for payment of 33% of commissions earned. The generally 17accepted meaning of earnings is gross rather than net. The provision that follows, which uses the term payment, refers to the time of transfer of the amount due to the Wife.
Victoria L. Burns argues that substantive rights are determined by the law of the place and that is the law of Massachusetts that alimony is based upon gross income. See Wooters v. Wooters, [74 Mass.App.Ct. 839, 911 N.E.2d 234 (2009) ]. James M. Burns disagrees with that interpretation of Massachusetts law. This court does not believe it necessary to determine the law of Massachusetts because interpretation of the contract is clear from its terms, specifically the use of the word earned in exhibit B, paragraph 2.
In addition to the generally accepted meaning of the word earned, there is additional support for the position of Victoria L. Burns. Nowhere in the Agreement is there any reference to net rather than to gross income. See for example the following:
5. Each Party shall furnish the other with reasonable documentation to confirm the gross amount of any earned income ...
6. The Parties agree that if the Husband receives any gross income from Continental Resources through his former partnership ...
7. The Parties agree that an annual accounting shall be done by Chuck Swartz with respect to any gross income the Husband receives from Advanced Technology Solutions and/or Continental Resources.
If the intention was for the calculation to be made from net payments, there should be some recitation of the deductions to be taken to determine that amount. There is none.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against appellant, James M. Burns.

AFFIRMED.


author: KEATY, Judge.

text:
    COLE’S CONSTRUCTION CREWS, INC. v. J-O-B OPERATING COMPANY.
    No. 12-147.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 2012.
    Allan L. Durand, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Cole’s Construction Crews, Inc.

      Edmond L. Guidry, III, Attorney at Law, St. Martinville, LA, for Plaintiff/Appellant, Cole’s Construction Crews, Inc.
    Glenn L. Langley, B. Lee Carr, Jr., Hargrove, Smelley, Strickland & Langley, Shreveport, LA, for Defendant/Appellee, J-O-B Operating Company.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

11 Cole’s Construction Crews, Inc. (Cole’s) appeals from a judgment denying its motion to set aside an ex parte order which dismissed its suit against J-O-B Operating Company (JOB) on the grounds of abandonment. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Cole’s filed a suit on open account against JOB on April 2, 2007. After JOB filed an answer and affirmative defenses, Cole’s propounded interrogatories and requests for production on JOB on October 29, 2007. JOB answered the discovery and served its responses on Cole’s on July 28, 2009.

On June 27, 2011, JOB filed a motion to dismiss suit on grounds of abandonment. Cole’s filed a motion requesting that the trial court schedule a hearing on the motion to dismiss. JOB opposed Cole’s motion, contending that the law did not provide for a hearing on a motion to dismiss for abandonment. After an ex parte order granting the motion to dismiss was signed on July 6, 2011, Cole’s filed a rule to set aside the order of dismissal. JOB opposed the rule. Following a hearing, the trial court denied Cole’s motion to set aside the dismissal.

Cole’s now appeals, asserting that the dismissal of its suit on grounds of abandonment when JOB served answers to interrogatories on Cole’s less than two years earlier was reversible error. Cole’s further contends that the granting of a motion to dismiss for abandonment was reversible error when the motion was not accompanied by the affidavit required by La.Code Civ.P. art. 561.

J2DISCUSSION

Louisiana Code of Civil Procedure Article 561, entitled “Abandonment in trial and appellate court” provides, in pertinent part, as follows:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(8) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1814, and shall execute a return pursuant to Article 1292.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Louisiana Code of Civil Procedure Article 1474(C)(4) provides that “[t]he serving of any discovery materials pursuant to the provisions of this Article shall be considered a step in the prosecution or defense of an action for purposes of Article 561, notwithstanding that such discovery materials are not filed in the record of the proceedings.” “Interrogatories and the answers thereto” are listed in Article 1474(B) and, therefore, are some of the types of discovery materials referenced in Article 1474(C)(4).

In Clark v. State Farm Mutual Automobile Insurance Co., 00-3010, pp. 5-6 (La.5/15/01), 785 So.2d 779, 784 (footnote omitted), the Louisiana Supreme Court noted:

Article 561 has been construed as imposing three requirements on plaintiffs. First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a “step” is defined as | staking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.
Article 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without court order. To avoid a possible waiver of the right to assert abandonment, a defendant is instructed by Article .561 on the proper procedure to utilize to obtain an ex parte order of dismissal. If despite some action by defendant during the three-year period that arguably constitutes a waiver the judge signs the ex parte dismissal order, the proper procedural mechanism is for the plaintiff to “rule defendant into court to show cause why the ex parte dismissal should not be vacated....”

The Clark court then referenced the following two prescription-based jurisprudential exceptions to the abandonment rule which allow the trial court to consider evidence outside of the record in determining whether a case has been abandoned.

Those two exceptions are: (1) a plaintiff-oriented exception, based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception, based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.

Id. at 784-85. .

“The jurisprudence has uniformly held that La. C. Civ. Pro. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit.” Id. at 785.

Dismissal of a plaintiffs lawsuit is the harshest of remedies. Thus, the law favors, and justice requires, that an action be maintained whenever possible so that the aggrieved party has the day in court to which he is entitled. For these reasons, courts have declined to allow form to prevail over substance in deciding if an action has been truly abandoned and declined to allow suits to b¿ dismissed based on mere technicalities.

Tessier v. Pratt, 08-1268, p. 6 (La.App. 1 Cir. 2/13/09), 7 So.3d 768, 772-73 (citation omitted).

14 Generally, the issue of abandonment concerns a question of law. The scope of appellate review for issues of law is simply to determine whether the trial court’s interpretative decision is legally correct. When the trial court’s decision is based on an erroneous application of law, rather than on a valid exercise of discretion in the underlying factual determinations, the decision is not entitled to deference by the reviewing court and, instead, is subject to a de novo review.

Id. at 773 (citation omitted).

The Louisiana Supreme Court has explained how courts of this state are to interpret statutes:

“[Ljegislation is the solemn expression of the legislative will and, therefore, the interpretation of a law primarily involves the search for the legislature’s intent. The starting point in ascertaining that legislative intent is the language of the statute itself. In examining that language, words and phrases are to be read in their context and to be accorded their generally prevailing meaning. LSA-C.C. art. 11; LSA-R.S. 1:3.”

City of New Orleans v. La. Assessors’ Ret. & Relief Fund, 05-2548, pp. 19-20 (La.10/1/07), 986 So.2d 1, 16-17 (citations omitted). “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the legislature’s intent. LSA-C.C. art. 9; LSA-R.S. 1:4.” Id. at 17.

Did Defendant’s Service of Answers to Interrogatories Constitute a Step in the Defense of the Case or Amount to a Waiver of its Right to Claim Abandonment?

In 1983, our supreme court stated in Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983) that the “filing of answers to interrogatories are ‘steps’ in the prosecution of the suit.” Cole’s submits that Traigle is still good law. It further submits that none of the amendments made to Article 561 since that ruling nor the 1989 amendments to the Louisiana Code of Civil Procedure, which provided that discovery was no longer to be filed in the record, altered the holding in Traigle. Cole’s also directs this court’s attention to Tessier, 7 So.3d at 773, where in 2009, | fithe first circuit, citing Article 561 and Clark, remarked that while there were “no filings of record between September 18, 2002, and June 12, 2007[,] ... it is undisputed that plaintiffs answered defendants’ interrogatories on January 13, 2003, which, although not on the record, constitutes an act of formal discovery and a valid, recognized step in the prosecution of the case.”

Because interrogatories and the answers thereto are specifically listed in Article 1474(B), Cole’s submits that answers to interrogatories, when properly served on all parties, are a type of discovery materials referenced in Article 1474(C)(4) which “shall be considered a step in the prosecution or defense of an action for the purposes of Article 561.” La.Code Civ.P. art. 1474(C)(4). Based on the foregoing, Cole’s submits that the trial court erred in dismissing its case because JOB filed answers to interrogatories less than three years before it filed its motion to dismiss.

JOB counters that responses to discovery are not formal discovery and thus not a step in the prosecution or defense of a case. It further submits that Article 561 is self-executing and that abandonment occurs automatically upon the passing of three years without a step being taken by either party.

In the instant matter, Cole’s propounded interrogatories on JOB on October 29, 2007. JOB voluntarily answered Cole’s interrogatories and served those answers on Cole’s on July 28, 2009. Less than two years later, JOB moved |fito have Cole’s suit dismissed as abandoned. After considering the relevant jurisprudence and applying the plain meaning of La. Code Civ.P. arts. 561 and 1474 to the facts of this matter, we are convinced that when a defendant answers the plaintiffs interrogatories and properly serves those answers on all parties to the action, as was done by JOB in this case, those actions qualify as a step in the defense of the case sufficient to prevent the action from being deemed abandoned. Moreover, when a defendant voluntarily answers discovery propounded by a plaintiff more than one and one-half years before, especially when it has not been prompted to do so by a motion to compel discovery, that action is certainly not consistent with treating the case as abandoned. Thus, although JOB is correct in its assertion that La.Code Civ.P. art. 561 is self-operative upon the passage of three years where no steps in the prosecution or defense of the action have been taken, in this case no abandonment occurred due to its answering and serving of Cole’s interrogatories less than two years after the previous last step in the case.

Because JOB’s answering of discovery was a step in the defense of the case and served to waive its right to assert that Cole’s case against it had been abandoned, we conclude that the trial court erred in denying Cole’s motion to set aside the ex parte order of dismissal. Accordingly, the trial court’s judgment will be reversed. As a result, we pretermit discussion of Cole’s second assignment of error.

DECREE

For the foregoing reasons, the judgment of the trial court denying Cole’s motion to set aside order of dismissal is reversed and this matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed against J-O-B Operating Company.

REVERSED AND REMANDED.

      . At the August 10, 2011 hearing on the motion to set aside the dismissal before Judge Wattigny, the judge to whom this matter was allotted, counsel for JOB explained that the motion to dismiss had been signed by Judge Comeaux.

      . See n. 1, citing Edwards v. Giambrone, 353 So.2d 326 (La.App. 1 Cir.1977), writ denied, 354 So.2d 1375 (La.1978).

      . Compare La. Dep't of Transp. and Dev. v. Oilfield Heavy Haulers, L.L.C., 10-1392 (La.App. 3 Cir. 4/6/11), 62 So.3d 308 (Saunders, J., dissenting), reversed, 11-912 (La.12/6/11), 79 So.3d 978, where this court affirmed the trial court’s dismissal of a suit as abandoned, holding that neither discovery responses sent by the plaintiff to one defendant in a multiparty suit but not served on all remaining defendants, nor a letter sent by one of the defendants to the plaintiff requesting a Rule 10.1 discovery conference, were steps in the prosecution or defense of the action sufficient to interrupt abandonment. In his dissent, Judge Saunders expressed his view that "the discovery responses, alone, should warrant reversing the trial court” and that the majority’s failure to recognize as much went against the purpose of La.Code Civ.P. art. 561. The supreme court granted writs and reversed, finding that "scheduling a Rule 10.1 conference constitutes a step in the prosecution or defense of an action sufficient to interrupt abandonment.” Because its holding was dis-positive of the case, the supreme court preter-mitted discussion of DOTD’s remaining arguments.


author: PETERS, J. GREMILLION,

text:
    Barbara BROWN v. LAFAYETTE ASSOCIATION OF RETARDED CITIZENS, INC.
    No. 11-1595.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 2012.

      John H. Pucheu, Pucheu, Pucheu & Robinson, Eunice, LA, for Plaintiff/Appel-lee, Barbara Brown.
    M. Jeremy Berthon, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendants/Appellants, Lafayette Association of Retarded Citizens, Inc., Louisiana Workers’ Compensation Corporation.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

_JjThe defendants, the Lafayette Association of Retarded Citizens, Inc. and the Louisiana Workers’ Compensation Corporation, appeal from a judgment of the workers’ compensation judge (WCJ) finding that the plaintiff, Barbara Brown, suffered a work-related accident and that she was entitled to statutory penalties and attorney fees. Mrs. Brown answered the appeal, seeking an award of additional attorney fees for work performed by her attorney on appeal. For the following reasons, we affirm the WCJ judgment in all respects and award Mrs. Brown an additional $5,000.00 as attorney fees for work performed by her attorney on appeal.

DISCUSSION OF THE RECORD

The evidentiary record establishes that on the morning of November 8, 2009, Mrs. Brown was employed by the Lafayette Association of Retarded Citizens, Inc. (LARC) as a direct care specialist in LARC’s Lafayette Parish facility. LARC provides a home environment for intellectually disabled individuals at its facility. Mrs. Brown had been employed by it for a period of approximately seven months. As a direct care specialist, Mrs. Brown was directly involved in the care of the residents, and this care including lifting, feeding, bathing, changing, training, and transporting the residents as the need arose.

On November 3, 2009, Mrs. Brown arrived at work at 6:00 a.m. and began her daily routine. While attempting to lift a resident, she felt a pain in her chest. Although the resident weighed only approximately 160 pounds, Mrs. Brown had to wait for five to ten minutes after experiencing the initial pain before moving the resident into her wheelchair.

A short time later, after returning to her work obligations, Mrs. Brown felt the pain in her chest return. Because she had suffered a heart attack in 2007, she sat down and took a nitroglycerin pill. She testified that she spilled her pills when 12attempting to retrieve one from her purse, and one of her co-workers, Connie Redeaux, helped her pick them up. Ms. Redeaux recalled the incident, testifying that she came upon Mrs. Brown sitting down and holding her chest. Ms. Redeaux recognized that something was very wrong and advised Mrs. Brown to inform Henrietta Grant, their supervisor, of her condition.

Mrs. Brown did not initially follow Ms. Redeaux’s advise. Instead, she returned to her duties after sitting for a few minutes. However, a short time later while delivering medication to a resident, she became hot and felt a heaviness over her left shoulder and down her legs. At this point, she knew that she was suffering another heart attack. She returned to her assigned area, informed Ms. Grant of her situation, and asked Ms. Grant to telephone her husband, Ivory J. Brown, Jr. Ms. Grant made the telephone call, and a co-worker drove Mrs. Brown to meet her husband. Mr. Brown, driving from Crowley, intercepted the co-worker between the facility and Crowley and carried his wife to the Crowley American Legion Hospital. Once stabilized, she was transported by ambulance to the Heart Hospital of Lafayette in Lafayette, Louisiana, where she was treated for a blocked stent by her regular cardiologist. Upon her release the next day, her husband drove her to the LARC facility where she gave her supervisor a work excuse from her cardiologist.

Two days later, Mrs. Brown presented herself to Dr. Yamen Korab, a Crowley, Louisiana family practice physician and Mrs. Brown’s family physician, complaining of left-sided neck pain. She returned to Dr. Korab on November 24, 2009, complaining of pain in her neck and down into her shoulder and behind her left knee, numbness in her toe, and ringing in her ears. A cervical MRI ordered by Dr. Kor-ab revealed a small central disc protrusion at C3-4 and mild spondylosis [3impinging on the left side of the neural foramina at C5-6 and C6-7. Based on this finding, Dr. Korab recommended that Mrs. Brown see a neurosurgeon.

On January 11, 2010, Mrs. Brown saw Dr. Patrick A. Juneau, III, a Lafayette, Louisiana neurosurgeon, complaining of neck and lower back pain relating back to November of 2009. Mrs. Brown told Dr. Juneau that she had suffered a heart attack while lifting a patient but, afterwards, she also began to experience pain in her neck and lower back. After examining her and reviewing the results of the MRI ordered by Dr. Korab, Dr. Juneau concluded that Mrs. Brown had suffered a work-related injury, but that her MRI revealed only mild degenerative changes. At this point, he ordered that a lumbar MRI be performed, and the results of that' test proved normal.

When she returned to Dr. Juneau on March 1, 2010, Mrs. Brown was complaining of increased neck and bilateral arm pain, worse on the left side; numbness and tingling sensations in her arms and legs, worse on the left side; numbness and tingling sensations in her left foot, particularly in her fourth and fifth toes; and numbness and tingling sensations in her right great toe. Dr. Juneau’s examination revealed that Mrs. Brown exhibited diminished sensation over the lateral aspect of her left foot, into the fourth and fifth toes, and over the right great toe. He found these symptoms consistent with left SI radiculopathy and possible involvement of the L5 nerve root. Given his findings, Dr. Juneau prescribed several tests to pinpoint whether Mrs. Brown’s pain was discogenic or muscular in nature. LARC refused to approve payment for these tests.

Mrs. Brown’s physical condition continued to deteriorate and on May 25, 2011, Dr. Juneau noted after examining Mrs. Brown that she continued to have complaints of pain in her neck, left trapezius muscle, arm, forearm, and hand, with | Singling sensations in her second, third, and fourth fingers, especially the third finger; as well as pain radiating across the right trapezius muscle to the shoulder. After closely reevaluating Mrs. Brown’s cervical MRI in light of her current presentation, Dr. Juneau concluded that his patient was suffering from foraminal sten-osis on the left at C5-6 and C6-7. Based on this diagnosis, he recommended that rather than undergo testing, Mrs. Brown undergo an anterior cervical discectomy with instrumented fusion at C5-6 and C6-7. LARC refused to approve payment for this treatment as well.

On March 8, 2010, Mrs. Brown filed a disputed claim for compensation against LARC and the Louisiana Workers’ Compensation Corporation (LWCC), seeking indemnity and medical benefits and the medical testing and treatment recommended by Dr. Juneau. Following an August 2, 2011 trial on the merits, the WCJ rendered oral reasons for judgment on August 17, 2011, finding that Mrs. Brown suffered a work-related accident on November 3, 2009, and awarding her indemnity benefits and all reasonable and necessary medical treatment, including surgery and mileage associated with her medical treatment. The WCJ further awarded Mrs. Brown $6,000.00 in statutory penalties and $12,500.00 in attorney fees. After the WCJ reduced its reasons for judgment to a written judgment, LARC and LWCC perfected this appeal. In their appeal, LARC and LWCC raise three assignments of error:

1. The Workers’ Compensation Judge committed manifest error in finding the claimant met her burden of proof that she was injured by an accident on the job.
2. The Workers’ Compensation Judge committed manifest error in awarding penalties and attorney fees.
3. The Workers’ Compensation Judge committed legal error in awarding an additional penalty for failure to approve a surgery recommended by Dr. Patrick Juneau.

| ¡Additionally, Mrs. Brown answered LARC and LWCC’s appeal to request an additional award of attorney fees based on the work performed by her counsel in defending this appeal.

OPINION

In the recent case, Ardoin v. Firestone Polymers, L.L.C., 10-245, pp. 4-7 (La.1/19/11), 56 So.3d 215, 218-220 (emphasis in original), the Louisiana Supreme Court detailed the law pertaining to a worker’s burden of proof on causation:

A worker in a compensation action must establish “personal injury by accident arising out of and in the course of his employment.” La.Rev.Stat. 23:1031(A). An accident is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.Rev. Stat. 23:1021(1). As in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged accident. Bruno v. Harbert International, Inc., supra, 593 So.2d [357,] 361 (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Civil Law Treatise, Workers’ Compensation, Section 253 (2d Ed.1980)). As we noted in Bruno, corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id. (citing West, Nelson, and Malone and Johnson).

In Bruno, we cautioned that, in deciding whether the plaintiff-worker has discharged his or her burden of proof, the fact-finder “should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of this testimony.’ ” 593 So.2d at 361 (quoting West, 371 So.2d at 1147, and citing Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987)). The fact-finder’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are, most certainly, factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Id. (citing Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988)).

It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, we set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Arceneaux, 365 So.2d at 1333; see also Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112.

In this ease, the hearing officer’s factual finding that the plaintiff succeeded in establishing the existence of a work-related accident was based on his determination with regard to the plaintiffs credibility. As we pointed out in Bruno, 593 So.2d at 361, this court in Rosell v. ESCO explained the concept of “clearly wrong” or “manifestly erroneous” with regard to credibility determinations as follows:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d at 844-45 (emphasis added and citations omitted).

17LARC and LWCC argue that the WCJ erred in finding that Mrs. Brown suffered a work-related accident on November 3, 2009. They point to several factors supporting their argument: Mrs. Brown’s failure to report this incident until January 11, 2010; inconsistencies between her trial testimony and her recorded statement; the absence of any mention of a lifting incident in Dr. Korab’s medical records; Dr. Juneau’s reliance on Mrs. Brown’s explanation for the cause of her pain and his initial finding of degenerative changes in her cervical spine; and her past history of three automobile accidents resulting in similar pain in her left shoulder.

Mrs. Brown testified that she contacted LARC about returning to work following her clearance by her cardiologist but that David Batiste, LARC’s administrator, refused to allow her to return to work until she obtained an additional release from Dr. Korab. This was complicated, according to Mrs. Brown, by the fact that Dr. Korab refused to release her to return to work pending the result of her consultation with a neurosurgeon. At this early stage, Mrs. Brown recognized that she had sustained a bodily injury in addition to her heart attack, but did not realize the seriousness of that injury. She acknowledged that she did not initially relate to Ms. Grant or Mr. Batiste the connection between her non-heart-related complaints and the incident of November 3, 2009— partly because despite her pain at the time, she fully intended to return to work. In fact, the first time LARC and LWCC were informed of a possible work-related claim was in correspondence from her attorney dated January 11, 2010. During the time in between, she applied for and received unemployment benefits (from mid-December 2009 to January 2010). Mrs. Brown stated that she ceased receiving l^these benefits once she was no longer capable of working. At the time of trial, she had not worked for anyone since the November 3, 2009 accident.

When questioned about her recorded statement to LWCC’s claims adjuster, Gerrod Galliano, Mrs. Brown admitted that some of her responses in that statement were inconsistent with her trial testimony. In her statement to Mr. Galliano, she had informed him the following concerning what she had told Ms. Redeaux about the events of November 3, 2009:

So she say, Barbara you can’t hardly breath, huh? Is [sic] say no. I say I can do the (unclear), I say, but it — it bothers me a little. I say but, my neck, something is wrong with my neck and that’s what I told Connie. I say, something wrong with neck [sic].
She say girl, you might have hurt yourself lifting up on Tasha. I say, Connie, I said I don’t know, I said, but I know one thing, my neck is hurting and I say, I got a heart pain in my chest.

She acknowledged at trial that she never suggested to Ms. Redeaux on November 3, 2009, that she had injured herself lifting the resident; nor did she relate any complaints of neck pain to Ms. Redeaux on that day. In fact, at trial, Ms. Brown testified that she recognized the onset of neck pain a few days after being treated for the heart attack and believed it to be a “Charlie horse” caused from lifting the resident on November 3, 2009.

Mrs. Brown acknowledged that she was involved in three automobile accidents before her November 3, 2009 accident, but denied any residual effects from those accidents. The only one in which she received injuries similar to those now giving her difficulties occurred in September of 2001. After that accident, she was treated by Dr. Joseph A. George, a Rayne, Louisiana family medicine physician, and Dr. George’s medical records indicate that Mrs. Brown complained of pain over C6-7 going into the left shoulder from September through November 2001. Mrs. Brown acknowledged that she suffered pain in her shoulder as a result | nof that accident, but denied suffering from pain in her neck and down into her left shoulder and arm similar to the pain associated with the November 3, 2009 accident.

According to Mrs. Brown, Dr. George released her in December of 2001, and she experienced no residual effects from that accident or any other before her November 3, 2009 accident. Furthermore, she had no difficulty in lifting her patients as a part of her employment with LARC. The testimony of both Ms. Grant and Mr. Brown supported Mrs. Brown on this point. Ms. Grant testified that Mrs. Brown was a good, hard-working, dependable employee, who never complained of any health issues. Mr. Brown acknowledged the history of the 2001 accident and his wife’s treatment with Dr. George, but also testified that she had not complained of neck or back pain since her release from Dr. George. Mr. Brown did testify that while being treated for her heart attack, Mrs. Brown complained to him that her neck was bothering her. However, the seriousness of her heart attack overshadowed the significance she gave her neck pain.

Ms. Grant testified that not only did Mrs. Brown not tell her of the back and shoulder injury during or after her heart attack, but that when she telephoned Mr. Brown to check on his wife’s status, he did not mention it either. However, she also acknowledged that she only spoke to Mrs. Brown one time after the accident, in a telephone conversation with her a few days after November 3, 2009.

Dr. Juneau testified that Mrs. Brown’s cervical MRI was abnormal from the beginning because she had bony foraminal stenosis at two levels and a protruding disc off to the left side, and that by May of 2011, her symptoms had lateralized off to the left side. He explained that the symptoms in her fingers are a classic sign of C7 nerve-root irritation, and that Mrs. Brown’s minimal disc protrusion at C6-7 | ^prominently narrowed the foramen on the left side. Dr. Juneau opined that Mrs. Brown’s neck pain resulted from the work-related injury at LARC on November 3, 2009. He reached this conclusion based primarily on the fact that her symptoms of neck and back pain’ began almost immediately after November 3, 2009. Dr. Juneau also stated that in reaching this conclusion, he was aware of the history of the 2001 automobile accident. According to the doctor, had Mrs. Brown suffered residual pain from that injury, she would not have been able to perform her duties at LARC.

Mr. Galliano testified that prior to taking Mrs. Brown’s statement, he met with Ms. Grant, Mr. Batiste, and others at LARC. After taking her statement, he then discussed the events of November 3, 2009, with Ms. Redeaux. When Ms. Re-deaux assured him that Mrs. Brown made no mention of neck pain on the day of the accident, he denied Mrs. Brown’s claim as not being associated with an on-the-job accident. However, Mr. Galliano also admitted that when he denied the claim, he had no medical opinion contradicting Dr. Juneau’s opinion as to the cause of Mrs. Brown’s neck pain. He stated that Dr. Korab’s medical records contained no indication that Mrs. Brown injured herself while lifting a patient. Mr. Galliano testified that his decision to deny Mrs. Brown’s claim has in no way been altered by Dr. Juneau’s subsequent opinions because he does not believe that Dr. Juneau can definitively relate her cervical problems to the November 3 lifting incident. He admitted that LARC and LWCC has not paid Mrs. Brown indemnity benefits or medical bills nor has it paid for rehabilitation or offered her vocational rehabilitation services.

In her oral reasons for judgment, the WCJ held that Mrs. Brown proved that her medical condition resulted from a work-related accident on November 3, 2009. |nThe WCJ found Mrs. Brown’s testimony credible, discounting the inconsistencies between her recorded statement and her trial testimony. The WCJ stated:

Considering the fact that on the date of the alleged accident she suffered a heart attack, the Court does not find that Brown’s memory in this regard casts serious doubt on her credibility. In fact, the Court finds it quite understandable given the circumstances that she is confused about having mentioned the lifting incident to anyone. The Court finds Brown’s testimony credible. Moreover, the jurisprudence is replete with cases that hold that an acute trauma can mask a secondary source of pain until the acute trauma starts to subside.

Based on the totality of the evidence, particularly the testimony of Mrs. Brown and that of her husband, Ms. Grant, and Dr. Juneau, as well the medical records, the WCJ held that Mrs. Brown proved she suffered a work-related accident on November 3, 2009. She found that Mrs. Brown had worked since 2001, without any complaints of pain and that Ms. Grant admitted that Mrs. Brown had made no such complaints during the seven months of her employment with LARC.

After reviewing the record, we find no error in the WCJ’s factual finding that Mrs. Brown injured her neck while lifting a resident at LARC on November 3, 2009, the same morning that she suffered a heart attack. The WCJ specifically found Mrs. Brown’s testimony credible and the evidence overwhelmingly in support of the finding that she injured her neck in a work-related accident. Considering the life-threatening situation in which she found herself that morning, it is not at all astonishing that Mrs. Brown either was unaware of her neck injury or that she did not tell Ms. Grant this. Other than the inconsistent statement that Mrs. Brown spoke with Ms. Redeaux about a possible injury while in the throes of her heart attack, all of the evidence, especially the medical evidence, corroborates Mrs. Brown’s version of what occurred. We further find it inconceivable that Ms. Grant would have taken the time to question Mrs. Brown about her neck pain while she 112was experiencing a life-threatening condition. Accordingly, the WCJ’s judgment finding that Mrs. Brown satisfactorily proved causation is affirmed.

Penalties and Attorney Fees

LARC and LWCC next argue that the WCJ erred in awarding Mrs. Brown statutory penalties and attorney fees and in awarding an additional penalty for their failure to approve the surgery recommended by Dr. Juneau.

An employer avoids the imposition of penalties and attorney fees when it engages in a “nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time [it] refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890 (alteration ours); La.R.S. 23:1201(F).

Importantly, this obligation is continuing in nature. Parfait v. Gulf Island Fabrication, Inc., [97-2104 (La.App. 1 Cir. 1/6/99),] 733 So.2d [11,] 25. Where, as here, an insurer or employer first receives a favorable medical report, but later receives information indicating the possibility of a continuing disability, it may not blindly rely on the earlier report to avoid attorney fees. Killett v. Sanderson Farms, [01-277 (La.App. 1 Cir. 5/10/02),] 818 So.2d [853,] 862. Statutes authorizing attorney fees in workers’ compensation cases are imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46.

Connor v. Family Dollar Store, 09-1537, pp. 14-15 (La.App. 1 Cir. 3/26/10), 36 So.3d 339, 350, writ denied, 10-959 (La.6/25/10), 38 So.3d 344.

The decision to cast an employer with penalties and attorney fees is a question of fact subject to the manifest error standard of review. Ashworth v. Administaff, Inc., 10-318 (La.App. 3 Cir. 10/6/10), 48 So.3d 1178.

LARC and LWCC’s argument that they were not arbitrary and capricious in the handling of this claim centers around the facts they knew early in the history of this matter, especially the above-described inconsistent statement contained in Mrs. 1 ^Brown’s recorded statement. LARC ' and LWCC. also point to testimony from Mrs. Brown on cross examination, where she admits that it was reasonable for Mr. Galliano to question whether she suffered a work-related injury.

In awarding penalties and attorney fees, the WCJ found LARC and LWCC arbitrary and capricious in their handling of Mrs. Brown’s claim not because of their actions early in the handling of the claim. Rather, the WCJ held that once they became aware of Dr. Juneau’s later opinions and, based on the fact that they had alleged no intervening cause for her neck pain, LARC and LWCC clearly should have known that her disability resulted from the November 3, 2009 work-related accident.

After reviewing the record, we find LARC and LWCC’s argument ignores the facts before them. The WCJ specifically found their actions in initially handling this claim reasonable, .but not so their later actions. The WCJ stated, ‘While the initial demand of the claim is understandable given the circumstances surrounding the accident, subsequent information regarding the accident and injury do not justify the insurer’s and employer’s continued denial of compensation and medical benefits.” We further find that while Mrs. Brown might admit under leading questioning that it was reasonable for LARC and LWCC to deny her claim, her belief has no bearing on whether their actions, ultimately, were arbitrary and capricious. As we find no manifest error in the WCJ’s finding, the award of penalties and attorney fees is affirmed.

We further find no error in the WCJ’s award of a $2,000.00 penalty based on the failure of LARC and LWCC to authorize the surgery recommended by Dr. Juneau. LARC and LWCC argue that the failure to authorize medical benefits and the failure to authorize surgery are the one and the same claim. We disagree. In 114her March 3, 2010 disputed claim, Mrs. Brown alleged that LARC and LWCC refused to authorize medical treatment and listed four medical tests recommended by Dr. Juneau. These tests were not authorized. By the date of trial, Dr. Juneau recommended that Mrs. Brown undergo surgery. LARC and LWCC also refused authorization for the surgery. Louisiana Revised Statute 23:1201(F) provides for statutory penalties based on an employer’s failure to pay medical benefits timely. The failure to authorize a necessary medical procedure is considered a failure to furnish medical benefits as required by La.R.S. 23:1203, which subjects the employer to penalties and attorney fees. La.R.S. 23:1201(F). In this instance, we find that there were two violations of La.R.S. 23:1203 by LARC and LWCC. Accordingly, the WCJ’s award of a penalty based on LARC and LWCC’s failure to authorize the recommended surgery is affirmed.

Answer to Appeal

In her answer to appeal, Mrs. Brown requests that we award her additional attorney fees for the legal services rendered by her counsel in successfully defending this appeal. Accordingly, we award her an additional $5,000.00 in attorney fees for legal services rendered on appeal.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge. We further render judgment to award an additional $5,000.00 in attorney fees for legal services rendered by Mrs. Brown’s counsel’s successful defense of this appeal. The costs of this appeal are assessed to the Lafayette Association of Retarded Citizens, Inc. and the Louisiana Workers’ Compensation Corporation.

AFFIRMED AND RENDERED.

GREMILLION, J., concurred in part and dissented in part and assigns reasons.

GREMILLION,

Judge, concurs in part and dissents in part and assigns written reasons.

|J concur in that the worker’s compensation judge did not commit manifest error in finding the claimant met her burden of proof that she was injured by an accident on the job.

I dissent with regard to the majority’s findings regarding penalties and attorney fees. I would reverse the trial court.


author:
PAINTER, Judge.
      SAUNDERS, Judge,

text:
    Rodney CHAMPAGNE, II and Wife, Nicole Champage, both Individually and on Behalf of Elizabeth Nicole Champagne v. AMERICAN ALTERNATIVE INSURANCE CORPORATION, Smeal Fire Apparatus Co., Waterous Company, Lafayette Consolidated Government, Lafayette Parish Fire Protection Association, and Daniel Lavergne.
    No. 12-51.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 2012.

      Hal J. Broussard, Ped C. Kay, III, Broussard & Kay LLC, Lawrence N. Curtis, Lawrence N. Curtis, Ltd., Lafayette, LA, for Plaintiffs/Respondents, Rodney Champagne, II, and Nicole Champagne, both individually and on behalf of Elizabeth Nicole Champagne.
    Henry D.H. Olinde, Jr., Drew Bernard, Olinde & Mercer, LLC, Baton Rouge, LA, for Defendants/Applicants, Daniel Lav-ergne and American Alternative Insurance Corporation.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| defendants, Daniel Lavergne (Lav-ergne) and American Alternative Insurance Corporation (AAIC), filed this writ application seeking review of the trial court’s denial of their motion for summary judgment. After due consideration, for the reasons set forth below, we deny the writ application and affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

This case arises.out of an alleged work-related injury incurring on or about June 28, 2010. Plaintiff, Rodney Champagne (Champagne), was a volunteer firefighter for the Duson Volunteer Fire Department (DVFD), and, on the date at issue, he was involved in testing the fire hoses on a pumper truck designated as Engine No. 46. Champagne alleges that there was a hose wall blow out that caused the hose to strike him in the head, causing a skull fracture and permanent mental injuries.

Champagne and his wife filed a tort suit, individually and on behalf of their minor child, against the manufacturer of Engine No. 46, Smeal Fire Apparatus Co.; the manufacturer of the centrifugal fire pump, Waterous Co.; Lafayette Consolidated Government; Lafayette Parish Fire Protection Association; a fellow volunteer, Lavergne; and Lavergne’s insurer, AAIC. Lavergne and AAIC filed a motion for summary judgment asserting that Lav-ergne is immune from tort liability under the Louisiana Workers’ Compensation Act because he is a co-employee. Plaintiffs filed a cross-motion for summary judgment regarding insurance coverage by AAIC. The trial court denied summary judgment to Lavergne and AAIC but granted Plaintiffs’ motion, in part, only insofar as Plaintiffs sought a determination that AAIC provided primary insurance coverage to Lavergne. Lavergne and AAIC sought writs from this court.

I ¿DISCUSSION

This writ application presents an issue of first impression: Whether the Louisiana Workers’ Compensation Act, specifically La.R.S. 23:1082 and 23:1036, provides tort immunity to a co-volunteer firefighter.

The standard of review applicable to motions for summary judgment is well established: “Appellate courts review a trial court’s grant or denial of a motion for summary judgment using the de novo standard of review, under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate in any given case.” Boykin v. PPG Indus., Inc., 08-117, p. 4 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, 842, writs denied, 08-1635 and 08-1640 (La.10/31/08) 994 So.2d 537 (citing Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226).

This case presents a purely legal question involving statutory interpretation. Defendants contend that Lavergne is immune from tort liability by operation of the Louisiana Workers’ Compensation Act, specifically La.R.S. 23:1036 regarding volunteer firefighters. Defendants contend that this statute wholly incorporates La. R.S. 23:1032.

Louisiana Revised Statutes 23:1036(A) provides:

It is hereby declared by the Legislature of Louisiana that the fire prevention and suppression services provided by volunteer fire companies are vital to the protection of the safety of the citizens of the state. This Section is intended to present the state fire marshal with a means by which he shall provide workers’ compensation coverage to volunteer members of fire companies. The remedies provided herein shall constitute the exclusive remedy of the volunteer member against the fire company as provided in R.S. 23:1032.

Louisiana Revised Statutes 28:1032(A)(1)(a) provides:

Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are | ^created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.

It is clear that La.R.S. 23:1032 extends tort immunity to co-employees. Defendants point out that there is an internal inconsistency in the last sentence of La. R.S. 23:1036 in that the first part of the sentence seems to limit the exclusivity of the immunity only to the volunteer fire company. Defendants assert that the last phrase expressly incorporates the statutory provision that makes workers’ compensation the exclusive remedy for both an employee’s claim against the employer and the employee’s claim against a fellow employee.

Defendants urge us to examine the legislative intent behind the statute at issue and assert that the intent of La.R.S. 23:1036 was to protect both the volunteer fire companies and their members from tort liability. Defendants argue that taking the legislative intent and grafting it onto La.R.S. 23:1032 results in the substitution of “volunteer member” for employee such that a volunteer member of a fire company has his exclusive remedy, including his claim against another volunteer, in workers’ compensation. Defendants further urge that policy considerations dictate that La.R.S. 28:1036 must protect a co-volunteer firefighter like Lavergne because to extend workers’ compensation immunity to co-employees protects the employer in that allowing co-employees to sue each other in tort would circumvent employer immunity because, in reality, it would be the employer who would pay for such suits.

Plaintiffs, in opposition to Defendants’ assertions, aver that a simple reading of La.R.S. 23:1036 reveals that there is no statutory basis for Defendants’ proposition that volunteer firefighters are granted immunity from tort. Plaintiffs further argue that La.R.S. 23:1036 does not incorporate the whole of La.R.S. 23:1032 but instead expressly only extends immunity to the fire company itself. Plaintiffs assert that had j4the legislature intended to provide immunity to both the fire company and its volunteer members, it could have simply so stated in the statute.

The trial court agreed with Plaintiffs and applied strict construction. In denying Defendants’ motion for summary judgment, the trial court stated that the:

clear language of R.S. 23:1036(A) specifically limits the remedy of a volunteer member to worker compensation benefits against the ‘fire company’ only. LSA R.S. 23:1036(A) is self-limiting and cannot be extended to eliminate a volunteer member’s cause of action in tort against another volunteer member, even with its reference to R.S. 23:1032. While it may have been the Legislature’s intention to further restrict volunteer members’ claims, this court cannot create such a restriction by, in effect, adding language to the above-cited statute.”

We recognize that the trial court applied a basic and well-settled principle of statutory construction in resolving an issue of law: “words of a law must be given their generally prevailing meaning.” La.Civ. Code art. 11. Moreover,

It is true that where statutes are clear and unambiguous[,] no interpretation thereof may be attempted by the courts. The letter may not be abandoned in an effort to pursue the spirit. But if, as a consequence of following the letter of the law, an absurd result is reached, then it is the duty of courts to seek out the motive which prompted the enactment ... Further, the Louisiana legislature has recognized that “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” LSA-C.C. art. 9.

Sherwood Forest Country Club v. Litchfield, 08-194, pp. 8-9 (La.12/19/08), 998 So.2d 56, 62.

We recognize that this may make members of the community reluctant to act as volunteers at their local department; however, this issue should be addressed by the legislature.

After our de novo review of the record, we can find no error in the trial court’s ruling.

I,DECREE

For the foregoing reasons, we find no error in the trial court’s denial of Defendant’s motion for summary judgment. We cannot say that the trial court erred in relying upon the specific language of the statute, and we affirm its judgment. All costs of this appeal are assessed to Defendants, Lavergne and AAIC.

AFFIRMED.

SAUNDERS, Judge, dissents and assigns written reasons.

SAUNDERS, Judge,

dissents and assigns written reasons.

|,In my view, La.R.S. 23:1036(A) and 23:1032(A)(1) must be read together. Thus, they have the effect of not only granting workers’ compensation coverage to volunteer fire fighters, but also shielding them from tort liability for their actions in the course and scope of their work as volunteer firefighters.